THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


/f 


^/.  /f^- 


A  TREATISE 


ON   THE 


PROBATE  PRACTICE 


AND 


LAW  OF  ESTATES 


IN    THE 


STATE  OF  ILLINOIS 


RELATING  TO  THE  ADMINISTRATION,  SETTLEMENT 
AND  DISTRIBUTION  OF  TESTATE  AND  INTES- 
TATE ESTATES  WITH  TESTAMENTARY 
WRITINGS  AND  FORMS 


By   FRANKLIN   P.    SIMONS 

OF  THE  CHICAGO  BAR 


VOLUME    I. 


CHICAGO 

CALLAGHAN    &    COMPANY 

1907 


Copyright  1907 

BY 

CAIvLAGHAN   &   COMPANY 


T 


PREFACE 


This  work  has  been  prepared  to  meet  the  requirements  of  the 
lawyer,  the  representatives  and  others  interested  in  the  admin- 
istration, settlement  and  distribution  of  estates. 

What  appeared  to  be  lacking  in  Illinois  and  other  states, 
was  a  practical  compilation  and  arrangement  of  the  law  and 
procedure  relating  to  testate  and  intestate  estates.  For  many 
years  the  statutory  enactments  of  the  different  states  have 
been  considered  the  fundamental  law  governing  the  practice 
and  procedure  in  courts  of  probate.  These  enactments  apply 
to  executors,  administrators,  guardians  and  conservators,  and 
generally  define  the  duties  and  powers  of  such  not  expressed 
by  will  or  testament;  but  in  those  states  where  the  common 
law  is  still  in  force  the  powers  and  duties  of  such  represent- 
atives are  enlarged  by  the  statute,  which,  with  the  common 
law,  may  and  often  does  extend  the  same. 

The  works  by  Jarman,  Redfield,  Woerner,  Perry,  Story, 
Pomeroy  and  others  contain  much  of  value  that  may  be  ap- 
plied during  the  administration  of  any  estate ;  but  these  works 
also  contain  much  of  no  value  to  the  lawyer  and  others  who 
must  depend  to  a  great  extent  upon  the  statutory  enact- 
ments of  the  different  states  and  the  well  considered  cases 
handed  down  by  the  courts  of  final  determination.  The  stat- 
ute and  case  law,  when  all  is  said,  are  the  proper  weapons  with 
which  to  meet  the  varied  and  important  questions  that  usually 
arise  during  the  administration  of  a  large  and  important 
estate. 

We  have  in  this  work  quoted  liberally  from  the  books  of 
standard  text  writers ;  but  in  doing  this  we  have  been  greatly 
aided  by  the  decisions  of  courts  citing  with  approval  those 
authors,  not  in  conflict  with  one  another,  or  the  well  consid- 

iii 


735974 


27  PREFACE. 

ered  opinions  of  courts,  from  which  the  doctrine  and  rules  laid 
down  by  text  writers  have  been  largely  taken. 

It  is  recognized  as  true,  that  most  if  not  all  property  real 
and  personal,  in  some  form  or  other,  must  pass  through  admin- 
istration once  in  every  generation ;  and  it  is  probably  true  that 
in  each  generation,  new  and  additional  legislation  in  the  vari- 
ous states  enlarge  the  duties  of  those  selected  to  administer 
estates;  these  new  enactments  also  enlarge  the  powers  and 
jurisdiction  of  courts  of  probate.  In  Illinois  in  recent  years 
many  important  changes  relating  to  the  administration  of 
estates  have  been  made  by  the  legislature.  New  and  complex 
questions  arise  as  wealth  and  population  increases,  as  evi- 
denced by  the  Inheritance  tax  law  and  the  "Torrens"  sys- 
tem of  land  titles,  one  of  the  principal  objects  of  which  law 
was  to  bring  in  time  all  estates  under  that  system. 

In  arranging  the  chapters  and  sections  of  this  work,  the 
subjects  relating  to  testate  and  intestate  estates  have  been 
considered  in  their  proper  order.  The  statutes  of  Illinois  have 
been  quoted  freely  and  generously,  and  where  the  .statute  is 
conclusive  in  any  matter,  the  application  is  made  and  sup- 
ported by  the  cases  cited.  Where  the  statute  modifies  the 
common  law,  or  where  the  latter  entirely  controls  the  subject 
treated,  such  is  supported  by  the  decisions  of  courts  giving 
the  doctrine  and  rule  in  support  of  the  subject.  Each  section 
of  the  Illinois  statute  as  compiled  by  Starr  &  Curtis,  with 
Jones  &  Addington's  supplements  thereto,  also  Kurd's  statute 
of  1905,  relating  to  Wills,  Administration,  Descent,  Dower  and 
Homestead,  Husband  and  Wife,  Conveyances,  Guardian  and 
Ward,  Conservators,  Evidence,  etc.,  has  either  been  copied  or 
its  substance  stated. 

A  large  number  of  forms  embracing  those  likely  to  be  of 
use  can  be  found  at  the  end  of  the  second  volume,  with  a  sep- 
arate index  attached,  referring  to  each  form  by  number.  Also 
attached  to  most  of  the  forms  are  foot  notes  to  guide  in  the 
use  of  the  same,  with  citations  to  which  the  form  has  reference. 
In  preparing  the  forms,  we  have  used  those  prescribed  by  the 


PREFACE.  ▼ 

statute  of  Illinois,  also  those  forms  adopted,  used  and  applied 
in  the  extensive  proceedings  relating  to  estates  in  the  county 
and  probate  courts  of  Cook  county.  We  have  used  freely  with 
the  aid  and  assistance  of  the  Hon.  Charles  S.  Cutting,  Judge 
of  the  Probate  Court  of  Cook  county,  Illinois,  the  orders  en- 
tered of  record  in  such  court,  that  for  many  years  have  been 
approved  by  the  practice  in  such  court  and  the  courts  review- 
ing the  records  and  proceedings  thereof. 

We  should  consider  this  preface  incomplete  if  we  failed  to 
call  special  attention  to  the  importance  of  the  courts  of  pro- 
bate, which  necessarily  produce  some  of  the  most  important 
litigation  known  to  the  history  of  jurisprudence.  The  im- 
mense volume  of  business  transacted  by  these  courts,  partic- 
ularly that  of  Cook  county,  is  generally  well  conducted  by 
such  courts  within  the  powers  granted  and  implied  under 
present  legislative  enactments.  The  general  public  sentiment 
is  always  in  favor  of  granting  to  these  courts  full  and  ample 
power  to  meet  every  emergency  that  may  arise  in  the  adminis- 
tration of  every  estate.  Modern  legislation  must  aim  to  accom- 
plish through  these  courts  of  probate,  a  rapid  legal  and 
equitable  system  looking  to  the  complete  settlement  and  dis- 
tribution of  all  estates.  Additional  and  extended  power  should 
be  granted  such  courts  at  the  earliest  possible  session  of  the 
legislature  to  administer  testamentary  trusts  created  by  will. 
Such  legislation  is  now  absolutely  needed  in  order  that  negligent 
trustees  may  be  held  to  account  quickly  in  aid  of  the  trust 
created  in  such  instrument. 

In  Appendix  I  will  be  found  paragraphs  from  the  wills  of 
noted  persons,  devising  large  estates  to  trustees  for  charitable 
and  other  public  purposes.  These  wills  are  valuable  aids  to 
the  lawyer  and  others  as  evidence  of  the  best  type  of  testa- 
mentary writings. 

F.  P.  S. 

Chicago,  May,  1907. 


TABLE  OF  CONTENTS 


VOLUME  L 

CHAPTER  I. 
THE  PROBATE  COURT. 

Constitution  of  1870  relating  to  such  court.  The  act  of  the  legisla- 
ture establishing  such  court.  Election  of  Judge.  Jurisdiction- 
Duties  of  SheriH  and  Clerk.  Interchange  of  County  and  Probate 
Judges. 

CHAPTER  II. 

JURISDICTION  OP  PROBATE  COURTS. 

How  far  recognized  in  law  and  equity.  Federal  Courts  take  jurisdic- 
tion in  matter  of  estates,  when,  etc. 

CHAPTER  III. 

DESCENT  AND  DISTRIBUTION. 

Rules  of  descent.  Lineal  consanguinity.  Lineal  heirs.  Will  may 
modify  and  completely  change  course  of  statutory  descent  Post- 
humous child,  illegitimates,  child  born  after  will  made.  Legiti- 
matized child.  Effect  of  marriage  upon  illegitimate,  etc.  When 
there  is  a  surviving  wife  or  husband  but  no  issue.  Advancements, 
rules  applying  to.    Distribution  of  undivided  estates. 

CHAPTER  IV. 

WILLS. 

Who  may  make  and  devise  property.  The  statute  of  Illinois  relating 
to  the  making  of  wills.  Fundamental  and  necessary  requisites 
of  a  valid  will.  Women  under  the  statute  relating  to  wills.  When 
the  will  or  testament  is  the  act  of  another  mind.  Testator  or 
testatrix  deprived  of  free  agency,  effect  of,  etc.  Acknowledging  and 
attesting  of  wills. 

CHAPTER  V. 

WILLS  CONTINUED. 

Nuncupative,  joint  and  mutual  wills.  Revocation  of  wills.  When 
codicil  revokes.  After  born  and  adopted  child  have  effect  upon 
will.    Intention  to  disinherit.    Erasure  of  part  of  will,  effect. 

vii 


Viii  TABLE  OF  CONTENTS. 

CHAPTER  VI. 

PROBATING  WILLS  IN  COURTS  OF  PROBATE. 

Petition  for  such  purpose  must  state  facts  truthfully.  For  fraud  or 
lack  of  jurisdiction  order  admitting  will  to  probate  may  be  set 
aside.  Witnesses  to  will.  When  such  are  dead.  Lost  will,  how 
established.  Copies  of  will  evidence.  Foreign  will  admitted  to 
probate,  authentication  of  such  will.  Notice  of  foreign  will  to 
adverse  interest.     Place  of  probate. 

CHAPTER  VIL 

CONTEST  OF  WILL  IN  PROBATE  COURT. 

Statutory  duty  relating  to — defined.  Appeals  from  order  allowing  or 
refusing  probate  of  will.  The  practice  in  appeals.  Burden  of 
proof.    Concurrent  and  cumulative  remedies. 

CHAPTER  VIII. 

CONSTRUCTION  OF  WILLS. 

Powers  of  disposition  and  limitations  thereon.  Words  used  construed 
under  established  rule.  Rules  governing  the  meaning  of  words  in 
their  ordinary  and  technical  legal  sense.  What  estate  conveyed. 
Words  of  inheritance.  Quantity  of  interest  Rule  when  instrument 
doubtful.    Precatory  words,  etc. 

CHAPTER  IX. 

CONSTRUCTION  OF  WILLS  CONTINUED. 

Ancient  rules  of  construction.  Modification  of  such  rules.  American 
principles  of  construction  and  interpretation. 

CHAPTER  X.      • 

CONSTRUCTION  OF  WILLS  CONTINUED. 

Modem  rules  relating  to  construction  emanate  largely  from  American 
courts.  Fundamental  rule  to  give  effect  to  intention  where  pos- 
sible under  existing  law.  Ninety-six  modem  rules  compiled  in 
this  chapter  to  give  effect  to  intention. 


TABLE  OF  CONTENTS.  ix 

CHAPTER  XL 

CONTEST  OF  WILLS  IN  CHANCERY. 

The  issue  of  fact.  Interested  persons  only  can  proceed  in  chancery. 
Trial  by  jury.  Jury  may  be  waived.  Contents  of  lost  or  destroyed 
will,  how  established.  Secondary  evidence.  Expert  witnesses. 
Statements  and  declarations  before  and  after  making  will,  effect 
of.  Testamentary  capacity.  Sound  mind  and  memory.  Effect  of 
old  age  upon  testamentary  capacity.  Fraud  compulsion  or  im- 
proper conduct     Advice,  argument  or  persuasion, 

CHAPTER  XII. 

TRUSTS  AND  TRUSTEES. 

Who  may  be  trustee.  Who  are  held  to  be  under  the  law.  Trustees  de 
son  tort.  The  rule  in  appointing  trustees.  The  same  person 
appointed  executor  and  trustee.  Resulting  trusts.  Constructive 
trusts.  Trusts  by  implication  or  operation  of  law.  Trusts  ex 
malificia.  Spendthrift  trust.  Conveyance  to  Uses.  Perpetuities. 
Equitable  conversion.  Relation  of  creditor  and  remainder-man  to 
doctrine. 

CHAPTER  XIII. 

TRUST  AND  TRUSTEES  CONTINUED. 

Collective  trusts.  Trustee  cannot  delegate  trust,  and  when  accepted 
cannot  renounce.  Must  seek  discharge  from  court  appointing. 
Powers  coupled  with  interest  Title  of  trustees  to  land.  Must 
defend  and  protect  title.  Cannot  create  lien  on  assets  held.  Rea- 
sonable care  and  diligence  exacted.  Trustee  guilty  of  fraud  or 
willful  default  Tracing  and  restoring  trust  funds.  Duty  to  col- 
lect assets.  Must  keep  clear  and  accurate  accounts.  Cannot  pur- 
chase at  his  own  sale.  Cannot  make  profits  from  trust  property. 
What  considered  proper  and  improper  investment  of  trust  funds. 
Intermeddlers,  etc. 

CHAPTER  XIV. 

GIFTS  CAUSA  MORTIS  AND  INTER  VIVOS. 

Principal  requisites  necessary  to  constitute.  Who  may  make  such 
gifts.  May  be  made  to  one  in  trust  All  the  legal  elements  must 
center  in  gift  A  gift  inter  vivos.  Distinction  between  such  and 
causa  mortis.  Right  of  dower,  homestead  and  awards  can  not  be 
effected  by. 


X  TABLE  OF  CONTENTS. 

CHAPTER  XV. 

INHERITANCE  TAX  LAW  OF  ILLINOIS. 

Rate  of  tax.  Who  come  under.  Tax,  when,  how,  and  by  whom  paid. 
What  institutions  exempt  from  tax.  When  real  estate  liable  to 
tax.  When  portion  of  tax  repaid  to  legatee,  refund.  When  tax 
paid  erroneously,  how  recovered.  Appraisers.  Expense  of  pro- 
ceeding. Books  to  be  kept.  Treasurer's  receipt.  Proceedings  to 
test  whether  property  liable  to  tax,  etc. 

CHAPTER  XVI. 

LAND  TITLES  "TORRENS  LAW." 

Tlie  act  extended  to  executors  and  administrators,  unless  excused  by 
probate  court.  Intended  in  time  to  bring  under  system  all  real 
estate  of  a  deceased  party.  Applications  to  be  referred  to  examiner 
who  holds  the  same  relation  to  court  as  a  Master  in  Chancery. 

CHAPTER  XVn. 
ADMINISTRATION. 
Necessity  of.    Different  administrators  defined. 

CHAPTER  XVIII. 

ADMINISTRATION  CONTINUED. 

Granting  letters  testamentary  and  of  administration.  Executor's  ajid 
custodian's  duty  to  present  will  for  probate.  Age  and  qualifica- 
tion of  executor.  Power  and  liability  of  such  before  probate  of 
will.  Death — failure  of  part  of  executors  to  qualify.  Removal  of 
executors  or  administrators  to  different  counties.  Form  of  letter 
prescribed  by  the  statute  of  Illinois. 

CHAPTER  XIX. 
ADMINISTRATORS  TO  COLLECT. 
Powers  of  such.    Termination  of  powers  and  duties  of  such. 

CHAPTER  XX. 

PUBLIC  ADMINISTRATORS. 

Governor  of  state  appoints.  When  such  may  administer  an  estate. 
Disposition  of  unclaimed  estate  by  such,  etc. 


TABLE  OF  CONTENTS.  xi 

CHAPTER  XXI. 

GRANTING  LETTERS  OF  ADMINISTRATION. 

Application  of  statute  in  that  regard.  Powers  and  duties  of  administra- 
tors. Form  of  letters,  oath  of  office.  Revoking  letters  and  remov- 
ing executors  and  administrators  from  office.  Bonds,  security, 
counter  security.  New  bonds,  etc.  Resignation  of  executor  or 
administrator  under  statute,  settlement,  costs,  etc.  Foreign  execu- 
tor, powers,  duties,  etc. 

CHAPTER  XXII. 

INVENTORIES  AND   APPRAISEMENTS. 

What  are  personal  assets.  Inventory  as  evidence.  When  assets  do  not 
exceed  widow's  allowance. 


CHAPTER  XXIII. 

CLAIMS  AGAINST  ESTATES. 

The  mode  of  filing  such.  Equitable  and  legal  powers  of  probate  courts 
in  such  matter.  Allowance  of  claim,  hearing,  etc.  Heir's  right  to 
contest  claims.  Execution  does  not  issue  against  representatives. 
Effect  of  judgment  recovered  in  another  state.  Proceedings  in 
Federal  court  to  establish  claim.  Rule  of  that  court  in  such  mat- 
ter as  to  order  of  judgment.  Adjudication  and  judgment  in  pro- 
bate court.  Claims  of  representatives  against  their  estate.  Ap- 
pointment of  person  to  defend  estate.  Classifying  claims,  order  of 
payment,  etc. 


CHAPTER  XXIV. 

AWARDS   TO  WIDOWS   AND  CHILDREN. 

Appraisers  in  such  matter  to  consider  conditions  and  mode  of  living 
widow  accustomed  to  at  time  of  husband's  death.  Administrator's 
duty  in  relation  to  awards.  When  the  widow  has  and  has  not 
a  lien  upon  the  real  estate  of  deceased  for  payment  of  award.  Legal 
release  of  award,  when  and  when  it  cannot  be  accomplished.  Ante 
nuptial  contract,  may  or  may  not  be  a  bar  to  award  to  widow. 


3Qi  TABLE  OF  CONTENTS. 

CHAPTER  XXV. 

COLLECTION  AND  DISPOSITION  OF  ASSETS  OF  AN  ESTATE. 

Concealment  of  effects  of  deceased.  Discovery  of  assets,  proceedings  to 
recover.  Title  sometimes  involved  in  such  proceeding.  Legal  pre- 
sumption of  title  to  property  belonging  to  deceased,  is  in  favor  of 
legal  representative.    Proof  must  overcome  ttiat  presumption. 

CHAPTER  XXVI. 

PARTNERSHIP   ESTATES. 

Duty  of  surviving  partner.  Surviving  partner  should  not  be  appointed 
administrator.  Rights  and  liabilities  of  surviving  partner.  Rela- 
tion of  assets  to  individual  and  partnership  debts. 

CHAPTER  XXVII. 

SALE  OF  PERSONAL  PROPERTY. 

"What  title  passes  private  and  public  sale.  Distribution  in  kind  under 
will  and  order  of  court.  Growing  crops,  when  personalty  and 
when  considered  real  estate.  Compounding  and  sale  of  desperate 
and  doubtful  claims.    Sale  of  claims  not  due. 

CHAPTER  XXVIII. 

EXECUTOR'S  SALE  OF  REAL  ESTATE  UNDER  WILL. 

Powers  of  executors  in  the  sale  of  lands.  Administrator  with  the  will 
annexed  and  his  powers  in  sale  of  land  under  will.  He  must  receive 
power  to  act  from  court  as  he  has  no  power  by  will.  Effect  of 
death  or  disqualification  of  executor  or  administrator. 

CHAPTER  XXIX. 

SALE  OP  REAL  ESTATE  TO  PAY  DEBTS. 

Bale  may  be  coerced.  Proceedings,  practice,  notice,  hearing  and  decree. 
Jurisdiction  of  persons  and  subject  matter  of  suit.  Overplus, 
Homestead  &  Dower  rights.  Adjustment  and  sale  of  life  estate 
liens  and  other  matters  effecting  title. 


TABLE  OF  CONTENTS.  XIU 

CHAPTER  XXX. 

SETTLEMENT  OF  EXECUTORS  AND  ADMINISTRATORS. 

Distribution.  Annual  and  final  settlements.  Notice  of  final  settlement 
must  be  given  heirs  or  legatees.  Closed  estate,  final  order  and  its 
effect.  Settlement  enforced,  contempt.  Removal  of  representative. 
Demand,  arrest,  commitment,  imprisonment  of  representative. 
Order  for  payment  and  distribution.  Suits  between  representa- 
tives. 

CHAPTER  XXXI. 

MORTGAGING  AND  LEASING  REAL  ESTATE!. 

Foreclosure  of  such  mortgage  specially  provided  for  by  statute.  No 
strict  foreclosure. 

CHAPTER  XXXII. 

ACTIONS  WHICH  DO  AND  DO  NOT  SURVIVE. 

The  legal  construction  of  contracts  may  determine  the  right  of  action. 
Real  estate  contracts  enforced  after  death.  Implied  duties  relating 
to  actions  by  heirs,  devisees  and  legal  representatives. 

CHAPTER  XXXIII. 
APPEALS  AND  WRITS  OF  ERROR. 
To  what  courts  appeals  in  different  cases  go. 

CHAPTER  XXXIV. 

ASSIGNMENT  OF  DOWER  AND  HOMESTEAD. 

Necessary  steps  in  such  proceedings.  Notice,  pleadings,  hearing,  decree. 
Appointment  and  report  of  commissioners  in  such  matter.  Power 
of  court  in  such  proceeding.    Waste  by  person  endowed. 

CHAPTER  XXXV. 

DOWER,  JOINTURE,  ADVANCEMENTS. 

Dower  right  subject  to  lien  and  incumbrance.  Effect  of  conveyance 
by  either  party  on  eve  of  marriage.  Jointure  bars  dower.  Pur- 
chase in  name  of  wife,  etc.,  presumed  to  be  advancement.  Pro- 
vision in  will  bars  dower.  Election  and  renunciation  under  statute. 
Divorce,  effect  of — on  dower.    Adultery,  effect  of — on  dower.   Judg- 


Xiv  TABLE  OF  CONTENTS. 

ment,  conveyance,  laches,  crime,  etc.,  when  not  a  bar  to  dower. 
Exchange  of  land,  when  dower  in  same.  Property  acquired  after 
will  made. 

CHAPTER  XXXVI. 

DISPOSAL  OF  UNCLAIMED  MONEY. 

To  be  deposited  as  directed  by  statute.  How  obtained  after  deposit 
Must  apply  to  court  making  order  of  deposit. 

CHAPTER  XXXVII. 

EVIDENCE  AND  DEPOSITIONS  UNDER  STATUTE. 

Witnesses,  competency  and  credibility  of.  Events  after  death  of 
decedent  and  after  death  of  minor.  As  to  transactions  proved  by  an 
agent.  Conversations  during  life  of  deceased  adduced  by  adverse 
witnesses.  Witnesses  when  not  competent  against  trustee,  legal 
representatives,  heirs,  legatees  and  devisees.  Interested  parties 
who  are.  When  party  competent  or  incompetent  to  testify.  Admis- 
sions and  declarations.  Written  instruments,  book  accounts.  Hus- 
band and  wife,  when  may  be  witness  for  and  against  each  other. 
Adverse  party  compelled  to  testify.  Production  of  books  and  writ- 
ings. Exemplified  and  certified  records.  Records  of  private  and 
public  corporations. 

CHAPTER  XXXVIII. 

APPRENTICES. 

Who  may  bind  such.  Proceedings  for  such  purpose  with  or  without 
consent  of  parents  or  minor.  Indenture  of  apprenticeship  and 
what  it  must  provide  for.  Complaints  against  masters.  Removing 
apprentice  out  of  the  state,  enticing  away,  etc.,  penalty. 

CHAPTER  XXXIX. 

APPOINTMENT  AND  QUALIFICATION  OF  GUARDIANS. 

Different  kinds  of  guardians.  Powers  and  duties  of  testamentary  guar- 
dian.   Inventories,  etc. 

CHAPTER  XL. 

PUBLIC  GUARDIAN. 

When  appointed  by  the  Governor  of  the  State,  when  appointed  by  the 
Court.     When  such  guardian  fails  to  qualify. 


TABLE  OF  CONTENTS.  XV 

CHAPTER  XLI. 

DUTIES  AND  POWERS  OF  GUARDIANS. 

Suits  by,  for  or  against  wards,  guardians,  next  friend.  The  power  to 
contract  how  far  binding  on  ward.  Management  of  ward's  estate, 
education  of  ward.  Investments  by  guardian  solely  statutory 
in  Illinois. 

CHAPTER  XLII. 

LEASING,  MORTGAGING  AND  SELLING  REAL  ESTATE  BY 
GUARDIANS. 

Foreclosure  of  such  mortgage  special,  no  strict  foreclosure.  Bill  of 
review  in  such  matter.  Requisites  of  petition,  notice,  practice  sale, 
return  title.  Non-resident  guardian's  powers,  sale  by  such,  notice 
terms,  deed,  title,  etc. 

CHAPTER  XLIII. 

GUARDIAN'S  SETTLEMENT  AND  ACCOUNTING  ON  FINAL 
SETTLEMENT. 

Powers  of  probate  court  and  of  guardian  not  strictly  confined  to  statute, 
common  law  powers  and  duties  still  in  force  in  Illinois.  Citation, 
limitation,  liability  of  sureties,  etc.  Removal  of  guardian,  pro- 
ceedings for.  Effect  of  marriage  of  female  ward  discharges  her 
guardian.  Unclaimed  moneys  in  hands  of  guardian,  to  be  deposited, 
etc. 

CHAPTER  XLIV. 

IDIOTS,  LUNATICS,   DRUNKARDS   AND    SPENDTHRIFTS. 

Proceedings  to  determine  question  of  sanity.  Summons,  service,  hear- 
ing, jury,  continuance  and  appointment  of  conservator.  When 
court  of  equity  will  adjudicate  as  to  insanity.  Settlements  of  con- 
servator, manner  of  accounting,  etc.  Performance  of  contracts  of 
insane,  etc.  Contracts  of  insane,  when  and  when  not  void.  Man- 
agement of  estates  of  insane,  etc. 

CHAPTER  XLV. 

COMMITMENT  AND  DETENTION  OF  LUNATICS. 

Proceedings  for  supposed  insanity.  Inquest  by  jury  or  commission. 
Jurisdiction, of  persons  not  charged  v/ith  crime,  docket  and  record 
of  such  kept.    Authority  to  discharge  vested  in  trustees.    Adminis- 


XVi  TABLE  OF  CONTENTS. 

tration  and  enforcement  of  laws  governing  insane  after  commit- 
ment entrusted  to  State  Commissioners  of  Public  Charities. 


CHAPTER  XLVI. 

INVESTMENT  OF  MONEY.  LEASING,  MORTGAGING  AND  SELLING 
REAL  ESTATE  BY  CONSERVATOR. 

Proceedings  where  conservator  sells  real  estate,  petition,  notice,  prac- 
tice, etc.  Powers  conferred  upon  the  court  in  such  case.  Non- 
resident conservator's  sale  of  real  estate.  Proceedings,  practice, 
etc.,  in  such  case. 

CHAPTER  XLVII. 

RESTORATION  OF  REASON  TO  INSANE. 

Proceedings  for  such  purpose.  Trial.  Judgment.  Settlement  of  con- 
servator. 

CHAPTER  XLVIII. 

COMMON  DISASTER. 

Presumption  of  death  under  Roman  and  common  law.  Inferences  of 
survivorship  may  be  drawn  from  the  best  evidence  suggested  by 
every  case.    When  insured  and  beneficiary  die  in  same  disaster. 

CHAPTER  XLIX. 

FEES  OF  CLERKS  OF  PROBATE  COURTS  IN  CLASSIFIED 
COUNTIES. 

Act  in  relation  to  docket  fee  held  unconstitutional.  Fees  of  clerks  of 
county  courts  in  probate  matters.  Remission  of  fees,  etc.  Record 
in  case  of  appeal  or  writ  of  error,  fees  and  costs  in  such  matter. 


VOLUME  II. 

CHAPTER  L. 

REVERSIONS  AND  REMAINDERS. 

Defined.  Distinction  between  and  gift  to  be  paid  at  a  future  time,  and 
a  direction  to  pay,  or  transfer  the  gift  or  legacy,  at  a  future  time. 
How  created  by  words  and  language  used.  Court  determines 
whether  remainder  is  vested  or  contingent  and  whether  such  take 
effect  immediately  or  in  the  future,  or  not  at  all.     Vested  may 


TABLE    OF    CONTENTS.  XVU 

be  transferred  by  sale  on  execution,  by  deed  or  will.  Contingent 
remainder  may  be  merged,  may  be  void  for  remoteness,  may  fail 
or  be  destroyed.  How  such  preserved,  how  lost.  Who  may  take 
vested  and  contingent  interests.  Prior  estate.  Deed  may  con- 
vey. Future  interest  were  possible  construed  to  vest.  Devises 
of  remainders  to  a  class  of  persons  named  and  not  named.  Future 
springing  and  changing  interests.  Determinable  interestSw  Ex- 
ecutory devises.  When  property  devised  for  life  must  be  con- 
verted into  money  under  established  rules.  Security  for  preserva- 
tion of  future  estate.  Life  estate  coupled  with  power  of  sale. 
— Limiting  a  fee  upon  a  fee.  Cross  remainders  implied  under 
rules  of  construction.  Power  of  disposal  in  first  devisee.  Restric- 
tion when  prior  and  subsequent  clause  of  Will  are  in  conflict. 


CHAPTER  LI. 

COMMON  LAW  MARRIAGES. 

General  remarks  concerning.  The  Statute  of  Illinois  of  1905,  declaring 
same  void.  Evidence  of  such  marriage  under  rules  established. 
Restrictions  upon  such  marriage  where  all  legal  elements  do  not 
center  in  such  marriage.  Held  valid  in  Illinois  when  legally  estab- 
lished. 

APPENDIX  I. 

Paragraphs  from  Wills  of  Noted  and  Prominent  Persons,  namely: 
William  H.  Vanderbilt,  Marshall  Field,  George  M.  Pullman,  Cyrus 
H.  McCormick,  George  Smith,  Levi  Z.  Leiter,  John  Crerar,  Walter 
L.  Newberry,  Philip  D.  Armour,  Gustavus  F.  Swift,  Otto  Young, 
George  E.  P.  Dodge,  Charles  T.  Yerkes,  Edwin  C.  Swift,  Nathaniel 
K.  Fairbanks,  Sarah  B.  Eaton,  Annie  W.  Durand,  and  Daniel  B. 
Shipman. 

APPENDIX  II. 

A  Collection  of  Forms  relating  to  the  Matter  of  Estates  and  the  Ad- 
ministration and  Settlement  thereof,  including  Petitions,  Orders 
and  Decrees,  and  such  other  Written  Instruments  as  Releases,  Dis- 
charges, Deeds,  etc.,  applicable  to  the  Administration  of  Estates. 


TABLE  OF  CASES   CITED 


[BEFEBENCES    ABE   TO    SECTIONS.] 


Abney  v.  Miller,  168. 
Abbott  V.  People,  386,  449. 
Adams  v.  Adams,  512,  514. 
Adair  v.  Bremner,  331. 
Aden  v.  Bear,  576, 
Agnew  V.  Uchten,  617. 

V.   Fultz,    624. 
Aken  v.  Cassiday,  733. 
Albers    Com.    Co.    v.    Sessel,    661, 

676. 
Albretch  v.  Wolf,  308. 
Alden  v.  St.  Peter's  Parish,  210. 
Alexander  v.  Hoffman,  660. 

V.  Masonic   Aid   Assn.,   75. 
Allen  V.  Allen,   633. 

V.   McFarland,   93,  862,  864. 

V.  Croft,  195. 

V.  Jackson,  210. 

V.  Shepard,    583. 
Ailing  V.  Brazee,  659,  668. 
Allman  v.  Ruckma.n,  452. 
Alna  V.   Plummer,   796. 
Alwood   V.   Ruckman,   452. 
Amber  v.  Weishaar,  96. 
Ames  V.  Ames,  44,  45. 

V.  Am,  T.  &  S,  Bk.,  270. 
American  v.  Rimpert,  625. 
American  Bd.  of  F.  Miss.  v.  Nel- 
son, 68. 
American  Bible  Soc'y  v.  Price,  82, 

269,   270,   279. 
Ammons  v.  People,   592,  712,  761. 
Anderson  v.  Friend,  672, 

V.  Block,  131. 

V.  Anderson,   177,   588,    661. 


Andrews  v.  Andrews,  210,  211. 

V.  Irwin,  116,   268,  667. 

V.  Mahoney,  822. 
Anthony    Itter   B.   Co.   v.   Ashby, 

653. 
Aortson  v.  Ridgeway,  707. 
Appeal  of  Seibert,  378. 
Argo  V.  Coffin,  274. 
Armstrong  v.  Cooper,  486,  592. 
Arnet  v.   Arnet,   98. 
Arnt  V.  Griggs,  380. 
Arnold  V.  Alden.  134,  229,  335,  865. 

V.  Keil,  286. 

V.  Crowder,   453. 
Asay  V.  Allen,  330,  332. 
Ashurst  V.   Given,   305. 
Atkins   V.  Merrell,   622,   625,  627, 

633. 
Atkinson   v.    St.   Croix   Mfg.   Co., 

666. 
Auger  V.  Tatham,  249. 
Austin  V.  Bristol,  229,  862,  865. 
Ayers  v.  Chicago  Title  &  T.  Co., 
375,  377,    378,   379,  862,  864. 

V.   Baumgarten,   740. 

V.  Mussetter,  830,  832. 


B 


Badgley  v.  Votrain,  851. 
Baggins  v.  Yates,  141. 
Bailey  v.  Briggs,  753. 

V.  Gould,  326. 

V.  Bailey,   241,   243,   724. 
Baker  v.  Baker,  80,  82,  258,  266, 
270,  274,  328,  653,  667. 

V.  Carpenter,   200,   310. 


ZlX 


XX 


TABLE  OF  CONTENTS. 


[BEFEBENCES   ABE   TO   SECTIONS.] 


Baker  v.  Scott,  136,  177,  193,  194. 

V.  Brown,    395,    477. 

V.  Hamilton,  726. 

V.  Thompson,   612, 
Balance  v.  Samuel,  606. 
Balder  v.  Meddeke,   836. 
Baldwin  v.   Ball,   530. 
Bales  V.  Elder,  57. 
Banerle  v.  Long,  215. 
Bank  V.  White,  68,  633. 

V.  Beesley,    298. 

V.  Brown,   449. 

V.  EUedge,    668. 

V.  Mansfield,  678. 
Baptist  Ed.  Society  v.  Carter,  608. 
Barclay  v.  Piatt,  851. 
Bardwell  v.  Brady,  258,   264,   265, 
281.  661,  663,  676. 

V.  Bardwell,  141. 
Barkman  v.  Barkman,  641. 
Barkworth  v.   Young,   297. 
Barnett   v.    Wolf,    580. 
Barnard  v.  Barnard,   67,  660. 
Barnes  v.  People,  336,  337,  339. 
Barnsback  v.   Dewey,  706,  754. 
Barnum  v.  Reed,  337,  340,  513. 
Barrel!  v.  Joy,  297. 
Barth  v.  Lines,  636. 
Bartholomew  v.  People,  651. 
Bartlett  v.  King,  169,  868. 
Bartmess  v.  Fuller,  66. 
Banta  v.   Boyd,   196,   311. 
Bassett  v.  Lockwood,  528. 
Bates  V.  Gilbert,  93. 

V.  Machine    Co.,    607,    665. 

T.  Gillette,  854. 
Bateman  v.  Ritter,  112. 
Bauer  Grocer  Co.  v.  McKee  Shoe 

Co.,   520. 
Bay  V.  Williams,  471. 

V.  Cook,   471. 
Bayers  v.   Spencer,   717. 
Baylor  v.  Baylor,  97. 
Beach  v.  Dyer,  299. 


Beacroft  v.   Strawn,  134. 

Beaird  v.  Wolf,  601. 

Beardsley  v.  Hill,  614. 

Beattie   v.   Nafl   Bk.    of   111.,   666. 

Beaubien  v.  Cicotte,   277. 

Becker  v.  Foster,   651. 

V.  Quigg,    621. 

V.  Becker,  191,  866. 
Bedford   v.    Bedford,    617. 
Beers  v.  Myers,  713. 
Beeves  v.  Stipp,  607. 
Bell  V.  People,  424. 

V.  Thompson,  649.  | 

V.  Farrer,    659. 
Bellamy  v.  Burrows,  297. 
Belslay  v.  Engle,  182,  190. 
Benefield  v.   Albert,   580,   739. 
Bennett   v.   Bennett,    302,   312. 

V.    Hanifen,    587,    598,    750. 
Benson  v.  Dempster,  285,  297.    , 
Bentley  v.  People,  678. 
Benton  v.  Broth.  R.  R.  Brakemen, 

838. 
Bergen  v.   Cahill,  140,  871. 
Berry  v.  Powell,  478,  518. 
Best  V.   Jenks,   623. 
Betts  V.  Jackson,   116. 
Bevelot  v.   Lestrade,  84,   131,   264, 

269. 
Beverly  v.  McGough,  269. 
Beyers  v.   Spencer,  865. 
Bibbens  v.  Potter,  139. 
Biggins  V.  Brackman,  673. 

V.  Biggins,  298,  301. 
Biglow  v.  Cady,  309,  321. 
Billings  V.  People,  375,  376,  378. 

V.  City  of  Chicago,  683. 
Bingle  v.  Voltz,  165,  173. 
Binns  v.  LaForge,  311. 
Birdsell   v.   Waggoner,   727. 
Birmingham  v.  Kirwan,   244. 
Bishop  v.   Davenport,   64,  65,   216. 

V.  Morgan,   173. 

V.  O'Connor,    528. 


TABLE  OF  CASES  CITED. 


2ja 


[BEFEBENCES    ABE   TO    SECTIONS.] 


Bixby  V.  Dunlop,  702. 
Black  V.  Miller,  265,  653. 
Blackburn  v.  Bell,  712. 
Blackiaw  v.   Milne,   75. 
Blair  v.  Sennott,  485,  611. 

V.  Vamblaroum,   190,   191. 
Blake  v.  People,  597. 
Blakeslee  v.  Mansfield,  134. 
Blanchard  v.  Blanchard,  235,  655, 
661. 

V.  Maynard,  228. 

V.  Williams,  591,  608. 
Bland  v.  Bland,  134,  140,  179. 
Blasdel  v.  Locke,  339. 
Bliss  V.  Seeley,  118,  121,  122. 

V.  Seaman,  439,   440,  586,  587. 
Blood   V.   Harvey,   611,  612. 
Boatman  v.  Boatman,  196,  852. 
Bodgson  V.  Baldwin,  515. 
Boehm   v.    Baldwin,    202. 
Bogert  V.  Furman,  386. 
Bonner  v.  Peterson,  618,  625,  627, 

633. 
Bonnett  v.  Glattfeldt,  669. 
Bond  V.  Lockwood,  586,  724,   749, 

750. 
B.  &  I.  Bldg.  Assn.  v.  Cochrane, 

669. 
Borders   v.   Murphy,   329. 

V.  People,    461,    512. 
Boord  V.  M.  Ferst  Sons  &  Co.,  666. 
Booth  V.  Tabbenor,  661. 
Bostwick  V.  Skinner,  43,  390,  395, 

706,    749. 
Bottomly  v.  Spencer,  643. 
Botsford  V.  O'Connor,  67,  580. 
Bough  ton    V.    Cameron,    727. 
Bow  V.  People,  652. 
Bowen   v.   Shay,   527,   529. 
V.  Allen,    173,    222. 

V.  Dean,  851. 
Bowers  v.  Block,  577. 
Bowerman  v.  Sessel,  187. 
Bowler  v.   Bowler,   856. 
Bowling  V.  Dobyn,  849. 


Bowles  V.  Rouse,  387. 

V.  Allen,   726. 
Bouzer  v.  Stoughton,  519. 
Boyd  V.  Boyd,  663. 

V.  Strahan,  140,  871.  i 

V.  Broadwell,  196. 

V.  Yerkes,    668. 

V.  Railway    Co.,    683. 
Boyer  v.  Boyer,  491,  494. 

V.  Sweet,  606. 
Boynton  v.  Phelps,  660. 
Bozza  V.  Rowe,  584. 
Brack  v.  Boyd,  499. 
Brace  v.  Black,  82,  676. 
Bradley  v.  Rees,  173,  221. 

V.   Gardner,   668. 

V.  Palmer,   279. 

V.  Drone,  580. 

V.   Wallace,   866. 
Bradford  v.  Bennett,  392. 
Bradshaw  v.  Combs,  649,  659,  662. 
Bradwell  v.  Wilson,  483.\^ 
Branch  v.  Ervington,  694.\ 

V.  Rankin,  387,  393,   408,   413» 
439,  440. 
Brandon  v.   Brown,   528,   750. 
Brannon  v.   Strauss,   335. 
Braunfield  v.   Braunfield,   278. 
Brecenridge  heirs  v.  Ormsby,  778. 
Breckenridge  v.  Ostrom,  518. 
Bree  v.  Bree,  580. 
Breen  v.   Richardson,   523. 
Bret  V.  Yeaton,  307,  324. 
Brewing  Co.  v.  Ohlerking,  673. 
Brice  V.  Hall,  97,  117,  131,  273. 
Bridge  v.   Bridge,   851. 
Brobston  v.  Cahill,   268. 
Brooks  V.  Barrett,  131. 

V.  McKinney,    659. 

V.  Funk,  668. 

V.  People,  713,  717. 
Brokaw  v.  Ogle,  852. 
Brookfield  v.  Allen,  79S. 
Bromfield  v.  Wilson,  179,  180. 
Bronson  v.  Hill,  229. 


XXll 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE    TO    SECTIONS.] 


Bropp  V.   Fox,   523. 
Brown  v.   Morgan,  462. 

V.  Riggins,  86,  272. 

V.  John,  177. 

V.  Pitney,  201,  244,  638. 

V.  Ward,   274. 

V.  Hurd,  659. 

V.  Miner,   776. 
Brownback  v.  Kessler,  196. 
Brownell  v.  Steers,  525. 
Bruce  v.  DoolitUe,  598,  750,  754. 
Bruler  v.  Setz,  327. 
Bruner  v.  Bruner,  87. 

V.  Battell,   265,   660,  664. 
Bryan  v.  Prinn,  707. 

V.  Wash,  717. 
Buchanan  v.  McLennon,  201,  266. 
Bucher  v.  Bucher,   233. 
Buckman  v.  Alwood,  265,  656. 
Buckingham   v.   Morris,  335,   869. 
Bull  V.  Harris,  471. 
Bunker  v.  Green,   451. 
Burr  V.  Bloomer,  448,  576. 

V.  Lyon,    253. 
Burbach  v.  Burbach,  296,  310,  313, 

317. 
Burger  v.  Polters,   610. 
Burgivin  v.  Babcock,  261. 
Burnett  v.   Lester,  867,  868,  871. 
Burnham  v.   Burnham,   851. 
Bursen  v.  Goodspeed,  630,  703. 
Burson  v.  Dow,  634. 
Burt   V.   Quisenberry,   82,    278. 
Burton  v.  Gagnon,  196. 

V.  Cameron,   730. 
Bush  V.  Blanchard,  324. 
Bute  V.  Kneale,  643. 
Butler  V.  Hubbard,  694. 

V.  Butler,  62,  324,  331. 
V.   Huestis,  134,   190,  603,  854, 
874. 
Butler  Paper  Co.  v.  Robbins,  329. 
Butterbaugh   Appeal,    319. 


Butz  V.  Schwartz,  657,  663. 
Byers  v.  McAuley,  47,  49,  472. 

V.  Thompson,  677. 
Byrne  v.  Norcott,  326. 


Cagney  v.  O'Brien,  588. 
Cairnes  v.  Hunt,   668. 
Calhoun  v.  Ross,  682. 
Calvert  v.  C!arpenter,  261. 
Callon  V.  Jacksonville,  847. 
Cayne  v.  Leach,  836. 
Camp  V.  Elliott,  392. 
Campbell  v.  Campbell,  82,  86,  272, 
273,  274,  281,  661,  663. 

V.  Quinn,  127. 

V.  Moore,  617. 

V.  Miller,  685,  742,  826,  827. 

V.  Mason,  872. 
Cantesey  v.  Cantesey,  79,  117. 
Cantwell  v.  Welch,  684,  685. 
Capek  V.   Kropek,  582. 
Cappo  V.  Hickman,  710. 
Carr  v.  Carr,  265,  653. 
Carey  v.  Rawlins,  851. 
Carper  v.  Crawl,  862,  864. 
Carroll  v.  Bosley,  424. 
C'armichael  v.  Reed,  256. 
Carpenter  v.  Browning,  133. 

v.  Van  Orlander,  134,  177,  195. 

v.  Calvert,  263,   266,   269,  274. 

V.  Mitchell,   610. 
Carper  v.  Crowl,  201,  638. 
Carter  v.  Grunnels,  276. 

V.  Stookey,  625. 

v.  Tice,  713,  750,  751. 
Cartwright  v.  Wise,   637. 
Caruthers  v.  McNeil,  166,  243. 
Carruthers  v.  Carruthers,  295,  417. 
Cary  v.   Stead,  134,  139. 
Casey  v.  Canavan,  313,  316. 

V.  Casey,  315. 
Cash  V.  Taylor,  666. 


TABLE  OF  CASES  CITED. 


XXlll 


[befebences  are  to  sections.] 


Cashman  v.  Will,  182. 
Cassen  v.  Kennedy,  93. 

V.  Heustis,   673. 
Cassell  V.   Joseph,  580. 
Casoni  v.  Jerome,  390. 
Central  Lumber  Co.  v.  Keller,  667. 
Central    Electric    Co.    v.    Sprague 

El.  Co.,  667. 
Chambers  v.  Jones,  583. 

V.  Howell,    522. 
Chamberlain  v.  Williams,  337. 
Champney  v.    Blanchard,  338. 
Chandler  v.  Morey,  822. 
Chapin  v.  Crow,  186. 
Chapman  v.  Cheney,  191,  857,  858. 

V.  U.  L.  I.  Co.,  453. 
Chappell  V,  Knight,  545. 
Chase  v.  Cheney,  652. 
V.  Redding,   340. 
V.  Smith,  694. 
Cheney  v.  Teese,  147,  182,  197,  873. 
V.  H.   F.    &   F.   Miss.    Society, 

117. 
V.  Roodhouse,  534,  750,  754. 
Chestnut   v.    Chestnut,    639. 
Chicago  Elec.  L.  &  R.  Co.  v.  Hut- 
chinson, 666. 
Title  &  T.   Co.  V.   Brown,   39, 

117,    127,    128. 
Terminal     T.     Co.    v.    Wins- 
low,    283,    305,    306,    317. 
Union     Nat'l     Bk.     v.     Goetz, 

300. 
Fire    Place    Co.    v.    Tait,  321, 
Mut.   Ins.  Assn.  v.   Hunt,  327. 
&   E.   I.   R.   R.   Co.   V.   O'Con- 
nor,  451,   607. 
R.     I.     &     P.     R.     R.     Co.     V. 

Welch,  660. 
City    Railway    Co.    v.    Tuohy, 

665. 
B.    &    Q.    R.    R.    Co.   V.    Dunn, 

672. 
Stove  Works  v.  Lalley,  695. 


Chicago,  R.   I.  &  P.  R.  R.  Co.  r. 

Munger,  776. 
Chisolm  V.  Beaman  Mfg.  Co.,  668. 

V.  Ben,   116. 
Christy    v.   Marmon,    58,  502,  506. 
Christiansen   v.   D.    T.   &   W.   Co., 
651,    661,    676. 

V.  Graver  Tank  Co.,  679. 
City  of  Alton  v.  County  of  Madi- 
son, 766,  796. 
City  of  Peoria  v.  Darst,  179,  SSI- 
City  of  Aurora  v.  Scott,  651. 
City  of  Chicago  v.  Nodeck,  657. 
City  of  Chicago  v.  Vesey,  667. 
City   of   Chicago  v.   English,   68?, 

683. 
Clark  V.  Thompson,  580,  583. 

V.  Carr,  530. 

V.  Shanon,  196. 

V.  Clark,   635. 

V.  Canfield,  253, 

V.  People,   073. 

V.  Pierce,    327, 

V.  American   Surety  Co.,  438L 

V.  Middleton,  871. 

V.  Burnside,     453,     629,     728, 
730, 

V.  Mogle,  467. 

V,  Lotts,    641. 
Clapp  V.  Emery,  SOO, 
Clausennius    v.    Clausennius,    54, 

89,   114,   131,   258,  278. 
Clay  V.  Hart,  429. 

V.  Freeman,  515. 

V.  Hammond,  778. 

Clewes  V.  Fox,  43, 
Cleland  v.  Fish,  707. 
Clifford  V.  Davis,  182. 
Cline  V.  Jones,  64,   66,  87,  865. 
Clinefelter  v.  Clinefelter,  399. 

V.  Ayers,  545. 
Cloggins  Appeal,   850. 
Clough  V,  Clough,  337. 


XXIV 


TABLE  OF  CASES  CITED, 


[BEFEBENCES   ABE  TO   SECTIONS.] 

Clyboum   v.   Pitts,   Ft.   W.   R.   R. 

Co..  633. 
Coat  V.  Coat,  487. 
Cobb  V.  Charter,  323. 
Ctockerman  v.  Cockerman,  277, 
Cochran   v.    Cochran,    168. 

V.  Adams,  327. 
Coffey  V.  Coffey,  512,  513,  514, 
Cole  V.  Haws,   142. 
Coles   V.   Terrill,   639. 
Coleton  V.  Field,  486. 
Collins  V.  Ayers,  623. 

V.  Kinnare,   588,  612. 

V.  Wood,  638. 
Columbia   Mfg.    Co.    v.    Hastings, 

•657. 
Combs  V.  Bradshaw,  659. 
Comer  v.  Comer,  64. 
Oommercial   Nat'l   Bk.   v.   Lincoln 
F.  Co.,  666. 

V.  Proctor,  515. 
Compher    v.    Browning,    86,    272, 

273,  278. 
Compton  V.  McCaffrey,  469,  585. 
Commonwealth  v.  Gilson,  429. 

V.  Toms,  401. 
Condon  v.  Churchman,  765. 
Conklin  v.  City  of  Springfield,  863. 

V.  Foster,   630. 
Connor  v.  Akin.  512. 
Connelly  v.  Dunn,  672. 
Conover  v.  Musgrave,  740. 
Consolidated   Coal   Co.   ▼.   Gruber, 

726.      . 
Constable  v.   Bull,  138. 
Conservatorship  of  Hall,  775,  781. 
Cook  Co.  V.  Fairbanks,  842. 
Cook  V.  Wood,  468,  484. 

V.  Gilmore,   328,   335. 
Cool  V.  Jackson,  623. 

V.  Jackman,  627. 
Cooper   V.    Cooper,    191,    197,    243, 
859. 

V.  McClun,    296. 


Coppin  V.  Fernybough,  168. 
C'orderey  v.  Hughes,  675. 
Cornell  v.  Crosby,  376,  378,  379. 
Corrington  v.  Corrington,  487. 
Corwin  v.  Shoup,  741. 
County  of  Cook  v.  Ind.  School  for 

Girls,  616. 
Cowdry  v.  Hichcock,  133,  149,  245, 

638,  639. 
Cowman  v.  Rogers,  836,  838. 
Cox  V.  Garst,   627,   634. 
Craig  V.  Southard,  80,  82,  266,  270, 

271,  272,  274. 
Grain  v.  Kennedy,  602. 
Crane  v.  Crane,  660. 
Crawford  v.  Burke,  164. 

V.  Cemetery  Assn.,  312. 

V.  Thompson,  779. 
Creel  v.  Kirkham,  452. 
Crerar  v.  Sawyer,  108. 
Critz  V.  Pierce,  117. 
Crose  V.   Rutledge,   672. 
Cross  V.  Carey,  386. 

V.  People,  268. 
Crossett  v.  Owens,  686. 
Grossman  v.  Wohllenben,  662. 
Cromine  v.  Tharp,  712. 
Cronin  v.  Royal  League,  653. 
Crone  v.  Crone,  298. 
Croucher  v.  Croucher,  298. 

V.  Dillon,  295. 
Crowley  v.  Crowley,  79,  131. 
Crum  V.  Sawyer,  108,  216. 
Grumpier  v.  Governor,  401. 
Crumley  v.  Warden,  75,  667. 
Cruse  V.  Cruse,  485,   496. 
Cuming  v.  Hill,  694. 
Cunningham  v.  Dougherty,  89. 

V.  Railroad  Co.,  727,  751. 
Curtis  V.  Rippon,  142. 

V.  Brown,  316,  822. 

V.  Brooks,   589,   613. 
Currie  v.   Syndicate,  666. 


TABLE  OF  CASES  CITED, 


XXV 


Curry  v.  People,  529,  530,  598. 
Cutler  V.  Cutler,  578,  581,  582. 
outright  V.  Stanford,  601. 


D 


Dady  v.  Condit,  657. 
Daggart   v.   White,   295. 
Dailey  v.  Dailey,  274. 

V.  Wilkie,  239,  243,  295. 
Dalndridge  v,  Washington,   484. 

V.   County   of   Kanka- 

781,    796. 

Daniher.  634,  635. 

Taylor,   339. 
McDonald,    475,    477, 


Dandurand 
kee, 
Daniher  v 
Darland  v. 
Darling    v. 

483. 
Darrah  v.  Boyce,  327. 
Darst  V.  Gale,   665. 
Daub  V.  Englebach,  471. 
Dauel  V.  Arnold,  578,  579,  638. 
David  V.  Ellis,  668. 
Davidson  v.   Riddin,   255. 
Davis  v.  People,  662. 

v.  Upson,  113,  255. 

V.  Stergeon,  134. 

v.   Hudson,    706. 

V.  Ripley,  177. 

V.  Stromberg,  289,  333. 

V.  Hamlin,  707. 

V.  Strambaugh,   301. 

V.  Harkness,     314,     703, 
750. 

V.  James,   603,   733. 

V.  Jones,  611. 
Davenport  v.  Farrar,  633. 

V.  Kirkland,  310. 

v.  Reynolds,   443,    550. 
Daxanbeklar  v.  People,  651. 
Day  V.  Everett,  694. 
Dean  v.  Walker,  471. 

V.  Bittinger,    253. 

V.  Long,  304,  660. 


[BEFEBENCES  ABE  TO  SECTIONS.] 

Dearlove  v.  Otis,  250. 
Dearth  v.  Bute,  612. 
Dee  V.  Dee,  196. 

Decker  v.   Decker,    165,   173,   243, 
248,  642,  645. 

V.  Patton,   387,   445. 
Deford  v.  Deford,  853. 
Deiterman  v.  Ruppel,  485. 
Deland  v.  Metzer,  736. 
Deltzer  v.  Schuester,  638. 
Demilly  v.  Grosresand,  43. 
Denegre  v.  Walker,  316. 
Dennis  v.  McCagg,  315,  332. 
Dennison's  Appeal,   277. 
Deniston  v.  Hoagland,  672. 
De  Pay  v.  Wurtz,  374. 
Despain  v.  Wagner,  285. 
Dettszer  v.   Schuester,   498. 
Deuterman  v.  Ruppel,  657,  683. 
Deval  v.  Dye,  337,  339. 
Devine  v.   Devine,   298. 
Dews  V.  Osborne,  651. 
Dick  V.  Dick,  298. 
Dickey  v.  Parker,  79. 

V.  Malechi,   267. 

V.  Carter,   271. 
Dieken  v.  McKinley,  297. 
Dickison  v.  Dickison,  726. 
Dickson  v.  Hitt,  588. 

V.  N.  Y.  Bis.  Co.,  215. 
Dickinson  v.  Dickinson,  166,  618. 
711,  V.   Griggsville   Nat'l    Bk.,   869. 

Dillman  v.  McDaniels,  270. 
Dingman  v.  Beale,  291,  295. 
Dinsmore  v.   Bressler,   449,   512. 
Dinwiddle  v.  Self,  191. 
Ditch  V.  Sennott,  201,  245,  638. 
Diversey  v.  Smith,  260,  608. 

V.  Johnson,  327,  520,  579.  580, 
591. 
Dixon  V.  Buell,  386,  750. 

V.  Nichols,    534. 
Dobbins  v.  First  Nat'l  Bk.,  717. 


XXVI 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE 

Dodge  V.  Nat'l  Ex.  Bk.,  666. 
V.  Mack,    486. 
V.  Cole,  602,  770,  771,  790,  820, 

822. 
Dodgson    V.    Henderson,    659,    660, 

662. 
Dodson  V.  Sears,  668. 
Doe  V.  Considine,  849. 
Doggert  V.  Dill,  44,  490,  523. 
Donoghue  v.   Chicago,   625. 
Donlevy  v.  Montgomery,  265. 
Donlin  v.  Bradley,  298. 
Doolittle  V.  Bruce,  750. 
Dooley  v.  Crist,  453. 
Doran  v.  Mullen,  130,  267. 
Dorman  v.  Dorman,  298,  386. 
Doty  V.  Doty,  651. 
Doubleday  v.  Kress,  666. 
Douglas  V.  Fullerton,  651. 
Douthart  v.  Logan,  515,  524. 
Dows  V.  Swan,  170. 
Downing  v.  Plate,  667. 
Drake  v.  Kinsell,  401. 
Draper  v.  Draper,  651. 
Drew  V.  Haggerty,  336. 
Drury  v.  Connelly,  96. 
Ducat  V.  City  of  Chicago,  379. 
Ducker  v.  Burnham,  93,   310,   849, 

864. 
Duffin  V.  Abbott,  43,  390,  395,  439, 

440,   549,   586,   602,  770. 
Duggart  V.  White,  295. 
Durham  v.  Mulkey,  621. 
Duncan  v.  Duncan,  162. 

V.  Charles,   101. 
Dunham  v.  Dunham,  641. 
Dunlap  V.  Lamb,   607. 
V.  McGee,    486,    592. 

Dunnigan  v.  Stevens,  479. 
Duryea    v.    Duryea,    68,    108,    134, 

227. 
Durror  v.  Matteaux,  210. 
Durant  v.  Rogers,  332. 
Dosing  V.   Nelson,   598. 
Dutton  V.   Board   of  Review,   379. 


TO    SECTIONS.] 

Duval  V.  Duval,  44,  45. 
Dwight  V.  Newell,  541,  602. 
Dwyer  V.  O'Connor,  298. 
Dye  V.  Noel,  611. 
Dyer  v.  Hopkins,  660,  678. 

E 

Eads  V.  Thompson,   673. 

V.  Mason,  490,  523. 
Eagan  v.  Clark,  588,  601. 

V.  Connolly,  679. 
Easterly    Harvester    Co.    v.    Hill, 

657. 
Eaton  V.  Watts,  142. 

V.   Straw,   851. 
Ebey  v.  Adams,  317,  854. 
Ebert  v.   Cording,    660. 
Eddy  v.  People,  770. 
Egbers  v.  Egbers,  279. 
Elder  v.   Bales,   57. 
Eldred  v.  Meek,  850. 
Eldridge  v.  Palmer,  779. 

V.  Eldridge,  855. 
Ellicott  v.  Lewis,  386. 
Ellis   v.    Ellis,    141. 
Ellithorpe  v.  Buck,   261. 
Ely  V.  Dix,  545. 
Emerick    v.    Hileman,     487,     587, 

65L 
Emerson  v.  Marks,  90. 
Emmerson  v.  Durand,  332. 
Emmert  v.  Hayes,  54,  88,  133,  173. 
Emmons  v.  Moore,  707. 
English   v.    Porter,   86. 

v.  Cooper,  310. 

v.   Landon,   663. 
Ennis  v.  Ennis,  615,  765. 
Entwistle  v.  Meikle,  80,  258,   266, 

275. 
Estate  of  Corrington,  44,  200,  296, 
598. 

Kohley,   131. 

Biddle,  862,  865. 


TABLE  OF  CASES  CITED. 


XXVll 


[BEFEBENCES    ABE 

Estate   of  Carstensen,  850,  855. 

Delaney,  855. 

Johnson,   850. 

Cashman,  93,  243,  871. 

Steele,  265,  466,  487,  653,  740, 
749.    750,    754,    757,    764. 

Page,    266,    267,   268. 

Scoville,  491,  494,  500. 

Bonse,   268,  659. 

Chafee,  274. 

Smith,  274,  709. 

Story,  283. 

Whitman,  295. 

Hoffman,  378. 

Stewart,   378. 

Dow,  378. 

Sloan,  378. 

Swift,    379. 

Speed,  379. 

Bailie,  379. 

Shell,  277. 

Dietz,    99. 

Grossman,   98. 

Wagner,   386. 

Dock,   389. 

Wincox,  391. 

Wilson,  415. 

Porter,  489. 

Phillip  Kraher,  512,  514. 

Scofield,  595. 

Ramsey,   598. 

Witton,  611. 

Margaret  Handlin,  651. 

Walker,   652. 

Selwyn,  836. 

Earl,  836,  837. 

Cope,  842. 

Rapp  V.  Phoenix  Ins.  Co.,  607. 
Etheridge  v.  Corprew,  127a. 
Etling   V.    Bank,   44,    45,    401,    434, 
467,  468,  470,  487,  579,   583, 
584. 
Evans  v.  People,  682. 

V.  Price,  149,  150,  638,  640. 


TO    SECTIONS.] 

Ewart     V.     Village     of     Western 

Springs,  685. 
Ewing  V.  Bailey,  652. 
Exter  V.  Odiorne,  305. 
Ex  Parte  Guernsey,  629. 
Ex  Parte  Burkhart,  706. 


F 


Fairbanks  v.  Crane,  851. 
Fairman  v.  Beal,  851. 
Faloon  v.  Sinshauen,  865. 
Fairwans  Appeal,  489. 
Farrand  v.  Long,  633. 
Fash  V.  Blake,  268. 
Flatjo  V.  Blister,  842. 
Fell   V.  Young,   603. 
Felsenthal  v.  Kline,  300. 
Female  Academy  v.  Sullivan,  862. 
Ferbache  v.  Ferbache,   660. 
Fidal  V.  Girard,  212. 
Figge  V.  Rowlen,  679,  681. 
Field  V.  Oppenstein,   280. 

V.  People,   196,   739,   740. 

V.  Herrick,  724,  727,  730. 
Filmore  v.  Weeks,  725,  580. 
Finley  v.  King,  851. 
Firemans    Ins.    Co.   v.    Peck,    662, 

663. 
First  Nat'I  Bk.  v.  Gage,  449,  526. 
Fish  V.  Glover,  471. 
Fisher  v.  Fishbank,  134,  200,  318. 

V.  Fisher,    660. 
Fishback  v.  Joesting,  134,  862. 
Fishbeck  v.  Gross,  298. 
Fisk  V.  Seeberger,  315,  330. 
Fitzgerald  v.  Turner,  565,  575. 

V.   Glancy,  386,  395.  579. 

Fitzgibbon  v.  Lake,  737,  740,  820. 
Fitzsimmons  v.  Cass,  485. 
Fitzpatrick  v.  Joliet,  615. 
Flagg  V.  Stone,  515. 
Flannigan  v.  Howard,  68. 


XXVlll 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE 

Fletcher  v.  Shepherd,  6G1. 

V.  Ashburner,   215,   310. 
Fleming  v.  Mills,  661,  663. 

V.  Vennum,  625. 
Fleischman  v.  Walker,  616. 
Flint  V.   McClung,   659. 
Flynn  v.  Gardner,  672. 

V.  Davis,  851. 
Ford  V.  McVay,   694,  695. 

V.  First    Nat'l    Bk.,    468,    483, 
484,  485.  488,  587,  512. 
Fogarty  v.  Ream,  750. 
Foskett  V.  Wolf,  488,  587. 
Foster  v.  Adler,  406. 

V.  Hart,  670. 

V.  Hale,  297. 
Fox  V.  Fox,  141. 
Frail  v.  Carstairs,  70,  866. 
Frame  v.  Frame,  590. 
Francis  v.  Wilkerson,  278. 
Francisco  v.    Hendricks,    630. 
Frank  v.  Moses,  615. 
Frankenstein  v.  North,  298. 
Frans  v.  People,  615. 
Frazer    v.    Supervisors,    190,    191, 

192,    854. 
Frederick  v.  Emig,  582,  633. 
Freer  v.  Lake,  101. 
Freeman  v.  Freeman,  672. 

V.   Easly,    54,   82,   86,   89,    263, 
272,  279. 

V.  Hartman,    635. 
French    v.    Northern    Trust    Co., 
292. 

V.  Woodruff,  42. 
Frendenstein  v.  McNeir,  598. 
Friedman  v.  Steiner,  140,  179,  181, 

857,  866,  871. 
Fredrick  v.  Fredrick,  217,  299. 
Frink  v.  People,  660. 
Frothingham    v.    Petty,    401,    415, 

424,  434. 
Frothman  v.  Deters,  €10. 
Fruitt  V.   Anderson,   776. 


TO    SECTIONS.] 

Fry  V.  Bidwell,  739. 

V.  Morrison,  162,  201,  637. 
Frynear  v.  Lawrence,  445. 
Fuller  V.  Field,  678. 

V.  Linzee,  836,  838. 
Funk  V.  Eggleston,  174,   182,   673, 

851. 
Furlong  v.  Riley,  495,  497,  499. 
Fussey  v.  White,  206. 


G 


Gage  Hotel  Co.  v.  Bank,  666. 
Gage  V.  Eddy,  651,  662,   S63. 

V.  Smith,   127. 

V.   Gage,   851. 

V.  Caraher,  380. 

V.  Consumers  El.  L.  Co.,  381, 
382. 
Galagher  v.  Kilkeary,  96. 
Galbraith  v.  McLain,  64,  216,  637, 

660,    672. 
Gale  V.  Gale,  201. 

V.  Kinzie,  633. 
Galena  C.   &  U.  R.  R.  v.  Welch, 

649. 
Gammon  v.  Gammon,  215,  295. 
Gannon  v.  Peterson,  134.  177,  191-. 

866. 
Gardt  v.  Brown,  101. 
Gardner  v.   Ladue,  119. 

v.  Maroney,   770. 
Garrison  v.  Little,  212. 
Garvin  v.  Curtin,   295,  316. 
Garvey  v.  Coughlin,  451. 

v.  Newton,  216. 
Gauch  V.   St.   Louis  Mut.   L.   Ins 

Co.,   74,   638. 
Gaunt  V.    Tucker,   340. 
Geisen  v.  Heiderick,  285. 
Gehrke  v.  Gehrke,  617. 
Gibbons  v.  Hoag,  321. 
Gibson  v.  Gibson,  576. 
Gifford  v.  Wilkins,  661. 


TABLE  OP  CASES  CITED. 


XXIX 


[BEFEBENCES   ABE   TO   SECTION'S.] 

Gilbert  v.   Guptill,   417,   711,   717, 

750,   754. 
Giles  V.  Anslow,  140,  141,  191. 

V.  Smith,  292. 
Gilespie  v.  Gilespie,  673. 

V.  Smith,   292. 
Gill  V.  Manufacturing  Co.,  196. 

V.  G.  T.  M.  Co.,  310. 
Gillette   v.   Wiley,   705,    712,    713, 


750,   751,   754. 
Gilman   v.   Stone,   212. 

V.  Hamilton,  213. 
Glass  V.    Scott,   102. 
Gloss   V.   Kingman,    381. 

V.  Cessna,  381,  382, 

V.  Hickow,    381. 

V.  Hoban,    382. 

V.  Halberg,    381. 

V.  Hallowell,    382. 

V.  Talcott,  382. 
Glover  v.  Condell,  134,  306,  872. 

V.  Cayton,  330. 
Goodale  v.   Lawrence,  796. 
Goodall  V.  Hibbard,  851. 
Goodman  v.  Kotrel,  44,  45. 

V.  Koppert,    386. 
Goodland  v.   Burnett,   168. 
Goodbar   v.    Lldikey,    271. 
Godschalk  v.  Fullmer,  285,  297. 
Goels  V.  Goels,  637,  662. 
Goeppner  v.  Leitzelman.  449,  461, 

469. 
Goff  V.  Pensonhafer,  198,  851. 

V.  O'Connor,   453. 

V.  Insurance  Co.,   661. 
Gogan  V.  Burdick,  624. 
Golder   v.    Bressler,    680. 
Gold  V.  Bailey,  448,  468,  469,  484, 
526. 
V.  Judson,    168. 
Gondy  v.   Hall,   820. 
Gordon  v.  Dickinson,  641. 

V.  Gilfoil,  47. 

V.  Dodge,    201. 
Qormley  v.  Bunyan,  679. 


Gorton   v.   Frizzell,   597. 
Governor  v.  Barr,  401. 

V.  Matlock,  401. 
Gove  V.  Gather,  625. 
Gould    V.    Theological    Seminary, 

79.   82,   117,   138. 
Grafifenreid  v.  Kundert,  390,    530, 

598,  600,  601. 
Graham  v.  U.  S.  S.  Inst,  666. 
V.  People,  481. 
V.  Dodge,    245. 
Grand  Pass  Shooting  Club  v.  Cros- 
by, 679. 

Grand  Tower  Manf  g  Co.  v.  Hall, 

733. 
Granjang  v.  Merkle,  475. 
Grattan  v.  Grattan,  64,  127. 
Gray  v.  Gillilan,  751. 

V.  Newton,  66. 
Graybeal  v.  Gardner,  263,  266. 
Green  v.  Birch,  638. 

V.  Hitchcock,  117. 

y.  Taney,  614. 

V.  Green,  86,  272,  279. 

V.  Hewett,  184. 
Greenbaum  v.  Austrian,  633,  634. 

V.  Greenbaum,    737. 
Greenwood  v.   Greenwood,  310. 
Greer  v.  Walker,  542. 
Gregory  v.   Loose,   666. 
Grier  v.  Cable,  611,  612,  616. 
Griffin  v.  Griffin,  182,  333,  662. 

V.  Bogert,   819. 
Grimmer   v.   Friederick,   196,   849, 

850,  855,  862,  864. 
Groembel  v.  Arnett,  523. 
Grover  v.  Grover,  339. 
Griswold   v.    Smith,    588. 

v.  Greer,  851. 

v.  Hicks,   851. 
Gritten  v.  Dickerson,  633. 
Gruhn  v.  Richardson,  300,  301. 
Guild  v.  Hall,  84,  269,  274. 
Guilfoil  v.  Arthur,  296. 


XXX 


TABLE  OF  CASES  CITED. 


[eefebences  are  to  sections.] 


GuUett  V.  Farley,  496,  638,  640. 
Gum  V.  Richardson,  280,  333. 
Gunnell  v.  Cocker,  717. 


H 


Hadley  v.   Hopkins,   212. 
Hagan  v.  Varney,  300, 
Hagerman  v.  Hagerman,  193,  340. 
Haines    v.    Hewett,    622. 
Hale  V.   Hale,   207,   210,   215,   251, 

295,  309,   317. 
Halfield    v.    Fowler,   134. 
Hall  V.   Irwin,   333,  390,  441,   527, 
546. 

V.  Warren,   154. 

V.  Moxey,  479. 

V.  Harris,   623. 
Halloran  v.  Fitzgerald,  300. 
Hambrook   v.    Simmons,    341. 
Hamlin  v.  U.  S.  Express  Co.,  133, 

140,  179,   864,  871,  874. 
Hamilton  v.  Hamilton,  641. 

V.   Wells,  530. 

V.  Latakee,  819. 

V.  People,    840. 
Hanchett  v.  Rice,  606. 
Hancock  v.  Am.  L.  Ins.  Co.,  253. 
Hanifan  v.  Needles,  390,  433,  440, 

596,   602,  760. 
Haniford  Oil  Co.    v.    First    Nat'l 

Bank,   665. 
Handberry  v.  Doolittle,  145,   855. 
Hanna  v.  Reed,  778. 

V.  Palmer,  582. 
Harding  v.  Le  Moyne,  577,  579. 
580,  581. 

V.  Shephard,    45,    478. 

V.  Osborne,   318. 
Harrer  v.  Wallner,  704. 
Harris  v.  Mclntyre,  298. 

V.  Connell,    318. 

V.  Millard,   488,    587. 


Harrison    v.    Wetherby,    118,    121, 
122. 

V.    Rowan,    272. 
Harriman  v.  Sampson,  661. 
Harrington  v.  Stees,  96,  97. 
Harmony  v.  Bingham,  323. 
Harp  V.  Parr,  95,  263,  271. 
Hart  V.   Seymour,   320. 

V.  Brown,    329. 

V.  Burch,  585. 
Hartz  V.   Seinsheimer,  852. 
Harshbarger  v.  Carroll,  856,  865. 
Hartford   Life    Ins.    Co.    v.    Sher- 
man, 665. 
Hartman  v.  Schultz,  582,  630,  852. 
Hartwell  v.  McDonald,  630. 

V.  DeVault,   644. 
Harvey   v.   Harvey,    750,    751. 

V.  Sweet,  740. 

V.  Cook   County,    382. 
Harvard  College  v.  Balch,  196,  849, 
864. 

Hapgood  V.  Cornwell,  523. 

Haskins  v.   Martie,   595. 

Hatch  v.  Atkinson,  336. 

Hause  V.   Van   Ingen,  332. 

Mauser  v.  Moore,  851. 

Hawhe  V.  C.  &  W.  I.  Ry.  Co.,  106. 

Hawkins  v.  Bohling,  862. 

v.  Wills,  141,  142. 
Hawver  v.   Hawver,   672,  674. 
Hayac  v.  Will,  578,  581,  582. 
Hayes  v.   Hayes,   374. 

v.  Mass  Mut.  L.  Ins.  Co.,  724. 
729. 

v.  Thomas,  51. 

V.  Parmlee,    674. 

V.  Borders,    702. 
Haynes  v.   Mcllwain,   300. 

V.  People,    597,    615. 

V.  Clearlock,  790,  791. 
Haynie  v.  Dickens,  638. 
Hazeltine  v.   Fourney,   300. 
Hazelrigg  v.  Pursley,  727,  751,  765. 
Heacock  v.  Hosmer,  261. 


TABLE  OF  CASES  CITED. 


xxxl 


[KEFEBENCES    ABE    TO    SECTIONS.] 


Headley  v.  Kirby,  336,  340. 
Healy  v.  Eastlake,  8G6,  874. 
Heath  v.  Hewitt,  851. 
Heckenkemper  v.  Dingwehrs,  597. 
Heirs  of  Langworthy,   393. 
Heirs  of  Critz  v.  Pierce,  131. 
Heinrichson  v.  Heinrichson,  866. 
Heintz  v.  Algren,  254. 

V.  Dennis,   307. 
Heiser  v.  Sutton,  636. 
Henchel  v.   Hamers,   298. 
Henderson  v.  Virden  Coal  Co.,  309. 

V.  Blackburn,    179,    182,    183, 
333,  871. 

V.  Coover,  401. 

V.  Treadway,  664. 
Hendrickson  v.  Van  Winkle,  712. 

V.  Mudd,   261. 
Henry  v.  Caruthers,  466. 

V.  Eddy,  449. 

V.  Tiffany,  670. 

County  V.   Drainage  Co.,   321. 
Henson  v.  Moore,  72,  88,  582. 
Hesse  v.  Simpson,  850. 
Hersey  v.  Purington,  850. 
Herman  v.  Vogt,  86,  273. 
Herrington   v.    Lawman,    386. 
Heslet  V.   Heslet,   530,   638. 
Heslop  V.   Grattan,   230. 
Hesterbrook  v.  Clark,   94,   396. 
Hetfield  v.  Fowler,  870. 
Hill  V.  Hill,  851. 
Hough  V.  Rawson,  863. 
Houstes  V.  Johnson,  €02. 
Heuschkel  v.  Heuschkel,  617. 
Howard  v.   Slagle,   587,   613. 

V.   Peavey,   854. 
Howe  V.  Hodge,  858. 
Hickox  V.  Frank,  387,  445. 
Higgins  V.    Dwen,    202. 

V.  Lansingh,   310. 

V.  Curtis,    329. 

V.  Spring,  601. 

V.  Higgins,  617. 


Highland   v.   Highland,   87. 
Hildebrandt  v.  Ames,  836,  838. 
Hill  V,  Bahrns,  80,  271,  279. 

V.  Grannelli,    39,    206. 
Hinds  V.  Hinds,  295. 
Hinkley  v.  Reed,  665. 
Hitt  V.  Scammon,  260,  627. 
Hoagland    v.    Great   W.    Tel.   Co., 
678. 

V.  Crum,   448. 
Hoare  v.  Harris,  726. 
Hobson  V.  Ewan,  43,  390,  395,  408. 

V.  Payne,  579,  615. 
Hobble  V.   Ogden,   318. 
Hoeffer  v.  Clogan,  210,  211,  212. 
Hoffman    v.    Chicago    Title    &    T. 

Co.,  665. 
Holbrook  v.  Forsythe,  75,  224. 
Holden  v.   Herkimer,   615. 

V.  Cook  County,  212. 

V.  Piper,   390. 
Holderman  v.   Gray,   660, 
Holton  V.  Dunker,  665. 

V.  Daily,   451. 
Hollaway  v.  Galloway,  131,  266. 
Holerman  v.  Blue,  729. 
Holister  v.  Corder,  836. 
HoUiday  v.   Dixon,   164. 

V.  Gamble,   702. 
Holmes  v.  Field,  710,  728. 

V.  Shaver,  528. 

V.  Burwell,   601. 
Holson  V.  Fullerton,  709. 
Hopkins  v.  McCann,  543,  576,  588. 

V.  Medley,  127. 
Hooper  v.  McCaffery,  492,  510. 
Hoover  v.  Hoover,  865. 
Homer  v.   Zimmerman,   712. 

V.  Spellman,    682. 

V.  Goe,  615. 
Horvitt  V.  Estelle,   279. 
Hotchkiss  V.   Brooks,   630. 
Hough  v.  Harvey,  595. 
House  V.   House,  142. 

V.  People,   43. 


XXXI 1 


TABLE  OF  CASES  CITED, 


[references  are 

Hovey  v.  Thompson,  668. 
Howe  V.  Hutchinson.  280. 

V.  Hodge,    320. 

V.  People,   598". 
Howard  v.   P"'lannigan,   105. 

V.  Slagel,  518. 
Hoy  V.  Martin,  142. 
Hoydt  V.   Shepherd,    330,   335. 
Hubbard  v.  Hubbard,  109,   162. 
Hudson  V.  Hudson,   216. 
Huey  V.  Huey,  717. 
Huesser  v.   Harris,   211,   212,    213, 

214. 
Huffman  v.  People,  390. 
Huggins  V.   Drury,   266,  274. 
Hughes  V.  Washington,   215. 

V.  People,  729,  730,   514. 
Hull  V.  Eddy,  851. 
Hulock  V.  Ferville,  865. 
Hundall  v.  Ham,  57,  68,  103,  108, 

637. 
Hunt  V.  McCartney,  196. 

V.  Fowler,    212. 
Kurd  V.  Goodrich,  330,  332,  382. 
Hurlbut  V.  Meeker,  659. 
Hutchinson  v.   Hutchinson,  665. 

V.  McLaughlin,  727. 
Hyman  v.  Harding,  286. 
Hyslop  V.  Finch,  611. 


lago  V.  lago,  771. 

Ide  V.  Ide,  851. 

Illinois  Cent.  Ry.  Co.  v.  Lattimer, 
726. 

V.  Messnard,   674. 

V.  Cragin,    495. 

V.  Weldon,    649,    651. 

V.  Reardon,    664. 

V.  Taylor,  672. 

Christian  Miss.   Con.   v.   Hall, 
337. 


TO   SECTIONS.] 

Illinois  Life  Ass'n  v.  Wells,  663. 
Land  &  L.  Co.  v.  Bonner,  199, 

215,  850. 
V.  Speyer,  259. 
Independent  Order  v.  Stall,  276. 
Inglis  V.  Trustees  Sailors  Harbor, 

213. 
Ingraham   v.   Ingraham,  134,   208, 
210,  211,  212,   256,  466,  471. 
Insurance   Co.    v.    Gorisch,    415. 
V.  Woodworth,  415. 
V.  Hardesty,   451. 
V.  Johnson,  657. 
Irwin  V.  Walpert,  241,  243. 
Iroquois  Furnace  Co.  v.  Hardware 

Co.,   665. 
Isle  V.  Cranby,  770,  771,  776,  792. 


Jackson  v.  Leek,  717. 

V.  Minor,    707. 

V.  Wilcox,   707. 

V.  Bank,  666. 

V.  Phillips,  210. 

V.  Horton,  300. 

V.  Phipps,   617. 

V.  Rowland,    617. 

V.  Spink,  819. 
Jackson  Paper  Co.   v.  Com.  Nat'l 

Bank,   666. 
Jacquin  v.   Davidson,   265. 
Jele   V.  Lemberger,   127,   255,   259. 
Jenkins  v,  Drane,  67. 
Jennings  v.  Graves,  694. 

V.  Jennings,   199. 

V.  Smith,   310,   638, 

V.  Neville,  513. 

V.  Dumphy,  585. 
Jernberg  v.  Mix,  657. 
Jessup  V.  Jessup,  598,  751.  / 

John  v.  Redmond,   666. 
Johns  v.   Johns,  316. 


TABLE  OF  CASES  CITED. 


XXXIU 


[references  are  to  sections.] 

Johnson  v.  Gillette,   611. 

V.  Mellhorsen,  43. 

V.  Askey,  134,  196,  874. 

V  Johnson,  140,  179,  182,  236, 
243,  253,  258,  263,  266,   279. 

V.  Bank,   164. 

V.  Davidson,  418. 

V.  Van   Epp,   450. 

V.  Von  Kettler,  512,  597. 

V.  Berlizheimer,   515. 

V.  Maples,    598. 

V.  Beasley,   706. 

V.  Merrithew,  836,  837. 

V.  Buck,    139,    200,    310,    469, 
585. 
Jones  V.   Gilbert,  630. 

V.  Jones,    295,   276. 

V.  Habbersham,    213. 

V.  Lloyd,  315. 

V,  ColbecK,  874. 
Judy  V.  Kelly,   445,  470. 
Jolly  V.  Graham,  469,  726,  276. 


K 


Kaenders  v.  Montague,  277. 
Kaufman   v.    Peacock,    633. 

V.  Breckinridge,  226,  302,  871. 
Kann   Moll   v.    Gardner,   297,   305, 

317. 
Karr  v.  Karr,  424. 
Keating  v.  Cornell  Bros.,  657. 
Kebaum  v.  Cordell,  673. 
Keegan  v.  Geraghty,  68,  640. 
Keefer  v.  Mason,  445. 
Keithly  v.   Parker,   79. 
Keith  V.  Miller,  101,  297. 
Keister  v.  Keister,  117. 
Kelly  V.   Parker,   79. 

V.  Vigas,  75,  134,  249,  251. 

V.  Gonce,  93. 

V.  Austin,    453. 
Kellett  V.  Shepard,  849,  864. 


Kellogg  V.  Hale,  178,  305. 

V.  Wilson,    583. 

V.  Peddicord,    297. 
Kelsey  v.   Snyder,  660. 
Kenley  v.  Bryan,  577,  581,  630. 
Kennedy  v.  Kennedy,  166. 

V.  Knoble,    215. 

V.  Northup,  778. 
Keniston  v.   Scoeva,  337. 
Kent  V.  Mason,  659. 
Koster  v.  Clark,  703. 
Killgour  V.   Gockley,  580. 
Killbe  V.  Myrick,  778. 
Kimball  v.  Cuddy,  777. 

V.  Cook,    649. 

V.  Lincoln,    522. 
Kindig  v.  Deardorff,  134. 
King  V.  Worthington,  659. 

V.  Goodwin,    499. 

V.  King,  311,  317. 

V.  Talbot,    331. 
Kingman  v.  Higgins,  630,  653. 

V.  Harmon,  196,  736,  850. 
Kingsbury  v.  Burnside,  67,  297. 

V.  Buckner,  67,  726. 

V.  Sperry,   615,   724,    733,   734, 
736,  765. 

V.  Powers,  734,   736. 
Kinne  v.   Schumacher,   592. 
Kinnebrew  v.   Kinnebrew,   851. 
Kinney    v.    Keplinger,     390,     514, 
547. 

V.  Knoebel,   819. 
Kirby  v.  Watt,   668. 
Kirkham  v.   Boston,  610. 
Kirkland    v.    Cox,    ITS,    220,    303, 
305,    317,   318. 

V.  Conway,   224. 
Kirkpatrick   v.    Kirkpatrick,     185, 
196,  249,  862,  864. 

V.  Haley,  477. 

V.  Clark,  285,  276. 
Kittridge  v.  Nicholes,  581. 
Klicka  V.  Klicka,  600. 
Klokke  V.  Dodge,  41,  42,  43. 


xxxiv 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE   TO    SECTIONS.] 


Knapp  V.  Knapp,  116. 
Knickerbocker  v.  People,  42. 
Knight  V.  Pottgieser,  196,  849,  862, 

864. 
Knowles  v.  Goodrich,  321. 
Knowlton  v.  Knowlton,  641. 
Koeffler  v.  Koeffler,  857,  866. 
Kohtz  V.  Eldred,   862,  865. 
Kochersperger  v.   Drake,   75,   260, 

372,  373,  606. 
Krebaum  v.  Cordell,  300. 
Kroell   V.   Kroell,     502,    509,    607, 

636. 
Kron  V.  Kron,  872. 
Kruse  v.  StefEens,  329. 
Kruger  v.  Kruger,  580. 
Kunnen  v.  Zurline,  100. 
Kunz  V.  Hibner,  178,  223. 
Kurtz  V.  Graybill,  215. 
Kusch  V.  Kusch,  582. 
Kyner  v.  Ball,  191. 


Landt  v.  McCullough,  667. 
Lancaster   v.    Lancaster,   134. 
Lane  v.  Thorn,  494,  612. 
Langley  v.  Dodsworth,  660. 
Langworthy  v.  Golden,  243. 

V.  Baker,   408,   615. 
Lantry  v.   Lantry,  301. 
La  Fayette  Bank  v.  Stone,  679. 
Lamar  v.  Micou,  705,  729. 
Lambe  v.  Drayton,  196. 
Lambert  v.  Harvey,   219. 
Lamkin  v,  Burnett,  651. 
Larson  v.  Wolf,   624. 

V.  Ditts,    285. 
Larman  v.   Knight,   289,    299,   301, 

333. 
Lattimer  v.   Lattimer,  865. 
Laughlin  v.  Covel,  381. 
Lavalle  v.  Strobel,  606. 


Lawrence  v.  Balch,  56,  638,  640. 

V.  Smith,  309,  858. 

V.  Lawrence,    311,    317,    661. 
Lawrie  v.   Radmitzer,   94,   106. 
Lawson  v.  Copeland,  326. 
Lawwill  V.  Lawwill,  75. 
Leamon  v.  McCubbin,   386,  416. 
Leavitt  v.   Leavitt,   661. 
Ledford  v.  Weber,  673. 
Lee  V.   People,   615,   616. 
Leiter  v.  Sheppard,  141. 
Le  Fray  v.  Flood,  142. 
Lehman   v.   Rothbarth,'    314,    323, 
327,   335,   728,   750,   751,  753, 
754. 
Lehndorf   v.    Cope,    140,    144,    177, 

191. 
Lehnard  v.   Specht,  196,  324,  333. 
Leman  v.  Sherman,  295. 
Lenfers  v.  Henke,  617,  033. 
Lesher  v.  Worth,  492,  510. 
Lessley  v.  Lessley,  492,  640. 
Lewis  V.  King,  61,  633. 

V.  Bambart,   121,  122. 

V.  Pleasants,    191. 

V.  Lyons,    386,    586. 

V.  Moffett,   525. 

V.  McGraw,    630. 
Liddicoat  v.  Trigtown,  386. 
Lieserow^itz  v.   Railroad   Co.,    726. 
Life  Ass'n  of  Am.  v.  Fasset,  609. 
Ligger  v.  Mut.  U.  L.  Ass'n,  329. 
Lilly   V.   Waggoner,    272,    777.  . 
Linebaugh  v.  Atwater,  726. 
Lincoln  Ave.  G.  R.  Co.  v.  Dadans, 

672. 
Lingren  v.  Railway  Co.,  673. 
Lepa   V.   Fox,    494. 
Litch  V.   Clinch,   665. 
Little  V.  Williams,  462,  495. 
Lloyd    V.    Malone,    621,    622,    737, 
740. 

V.  Knights   of   Pythias,    684. 

V.  Kirkwood,    726. 


TABLE  OF  CASES  CITED. 


XXXV 


[BEFEBENCES   Any.  TO   SECTIONS.l 

Lockwood  V.  Mills,  329,  584. 

V.  MofEett,    56. 

V.  Foster,  707. 
Loeb   V.   Stern,   265. 

V.  Stern,  654. 
Loewenthal   v.   McCormick,   668. 
Logan  V.  Taylor,   598. 
Lombard  v.  Kenzie,  633. 

V.    Whitbeck,     171,    191,    857, 
866,    873. 
Lomax  V.   Shinn,   177. 
Lovass  V.  Olson,  850. 
Louisville  T.  Co.  v.  Cincinnati,  47. 
Lunt  V.  Lunt,   205. 
Luther  v.  Luther,  113,  127,  255. 
Lynch  v.  City  of  Litchfield,  683. 

V.  Hutchinson,  38. 

V.  Lynch,    523. 

V.  Rotan,    386. 

V.  Hickey,  488,  492,  498. 
Lyman  v.  Conkey,  401. 
Lyne  v.   Sanford,  706. 
Lynn  v.  Lynn,  616,  733. 

V.   Sentel,  641. 


M 


Mack  V.  Woodruff,  478,  486,  592. 
Mackay  v.  Pulford,  487. 
Macnab  v.  Whitehead,  141. 
Madden  v.   Cooper,  579. 
Maddison     v.     Larmon,     849,     853, 

854,    873. 
Maghar  v.   O'Harra,   602. 
Magoun  v.  111.  T.  &  S.  Bank,  375. 
Magnuson  v.  Magnuson,  197. 
Maher  v.  Aldrich,    307,    308. 

V.  Trust  Co.,    265,   656,   661. 
Mahoney   v.   Mahoney,   660. 

V.  People,   512,   514. 
Makepeace  v.   Moore,  526,  541. 
Markham  v.  Hufford,  851. 
Maloney  v.  Scanlon,  478. 


Mannardt  v.    111.    Staatz    Zeitung, 

313,  321. 
Manna   v.   Yocum,   464. 
Markillie    v.    Ragland,    140,    182, 

871. 
Martin  v.    Stubbings,   838. 

V.  Judd,  127. 

V.  Martin,   336,    337,  338,   341. 
343,  512,  514,  613. 
Marsh   v.    People,    439,    443,      549, 
550,   586,   602. 

V.  Reed,   316. 

V.  Prentiss,  337. 

V.  Hoyt,  850,  855. 
Marshall  v.  Rose,  494,   576. 

V.  Coleman,  66,   290,  469,  587, 
589,    595,    668. 

V.  Adams,   467. 

V.  Karl,    265. 

V.  Peck,  673. 
Marston  v.  Wilcox,  431. 
Marsey  v.  Huntington,  87. 
Marvin   v.   Collins,    72. 

V.  Ledwith.  638,  849. 
Masonic  Orphans  Home  v.  Gracy, 

82,  131. 
Massie  v.   Belford,  428. 
Mason  v.  Wait,   728,  737. 

V,  Tiffany,  490. 

V.  Johnson,   614. 
Matson   v.   Griffin,   453. 
Mather   v.    Mather,    134,    14G,    182. 
Matter  of  Eddy,   389. 
Matter    of   Curtis,    390. 
Matthews   v.   Am.    Cent.    Ins.   Co., 
389. 

V.  Hoff,  580,  583. 

v.  Granger,   663. 
Matthewson  v.  Cheek,  865. 

V.   Davis,   332. 

&  H.  Z.  Co.  V.  City  of  La  Salle, 
864. 
Mattoon  Gas,  L.  &  C  Co.  v.  Dolan, 

451. 
Mattox  v.   Moulton,   331. 


XXXVl 


TABLE  OF  CASES  CITED. 


[EEFEBENCES   ABE  TO   SECTIONS.] 

Matzenbaugh  v.  People,  651. 
Maxey  v.   Heckethol-n,   666. 
Maxwell  v.  Maxwell,  64,  285,  637. 
May  V.  May,  66. 

V.  Llghty,  389,  487. 
Mayfield  v.  Forsyth,  298. 
Maynard    v.    Maynard,    299,    447, 
449,   500,   613. 

V.  Richards,  512,  515,  525. 


Mc 

McArthur  v.  Scott.  127,  415. 
McAnulty  v.   McAnulty,   108. 
McAyeal   v.   Gullett,   653. 
McClun  V.  McClun,  826,  827. 
McCloskey  v.   McCormick,  751. 
McCormack  v.  Littler,  777. 
McCormick  v.  Wheeler,  819. 
McCann  v.   Atherton,    660. 
McCall  V.  Lee,  44,  182,  464,  483. 
McCommon  v.  McCommon,  89,  279. 
MJcConnell    v.    McConnell,    398. 

V.  Smith,  50,  67,   175. 

V.  Stewart,  196. 
McCullom  V.  Chidester,  97,  234. 
McCarthy  v.  Hall,   428. 

V.   Osborne,   134,   148,   196. 
McClay   v.    Smith,    285. 
McCartney  v.  Ridgeway,  341,  342, 

513. 
McClune  v.  People,  415. 
McCleary  v.  Menke,  742,  750,  752. 
McCreedy  v.  Mier,  416,  427,  543. 
McCollister  v.  Bank.  449. 
McCoy   V.   Morrow,   465. 
McClure  v.  Otrich,  659,  662. 

V.  Williams,   608. 
McDale  v.  Shepardson,  317. 
McDavid   v.   McLean,   653. 

V.  Ellis,   668. 

V.  Rork,   674. 
McDeed  v.  McDeed.  679,  681. 
McDevitt  V.  Hibben,  251. 


McDonald  v.  White,  126,  259,  260. 
V.  Stow,    298. 
V.  People,    594,    597. 

McElheny  v.   Musick,   730. 

McFarland     v.     McFarland,     177, 
215,    238,   765. 

McGrew  v.  McGrew,  661. 

McGee  v.   McGee,   636. 

McGillis   V.    Hogan,   314. 

McGlinsey's  Appeal,   489. 

Mclntyre  v.   People,   417,  711. 
V.  Sholty,   776. 

McKay  v.  Riley,  653. 

McKee  v.  Abbott,  386. 

McKean  v.  Vick,  515. 

McLaurie   v.    Partlow,    297. 

McLean  v.   McBean,  579. 

McLean  County  Coal  Co.  v.  Long, 
386. 

McMahill   v.   McMahill,    491,    492, 
j  495,  500,   502,  504. 

I  McManus  v.   Kuth,   528. 
I  McManaman  v.   Blocks,   633. 
j  McMurphy  v.  Boyles,  638. 
I  McNabb  v.  Young,  318. 
j  McNeil  V.   Caruthers,   164. 
I  McNeer  v.  McNeer,   582. 

McNulta    V.    Lockridge,    127,    132. 
1  V.  Corn  Belt  Bank,  665. 

I  McNail  V.  Ziegler,  673. 


Means  v.  Earles,  724,  728. 
V.  Harrison,   538. 

Medowcroft     v.     Winnebago    Co., 
648. 

Meddeke  v.  Balder,  836. 

Meecham  v.   Steel,   305. 

Meek  v.  Allison,   432. 

Meeker  v.  Meeker,   261,   272. 

Meister   v.    Zimmerman,    659. 

Menkins   v.   Lightner,    274.   777. 

Meredith  v.  Henage,  142. 
I  Merrifield  v.  People,  379. 
I  Merrill  v.  Atkins,   660. 


TABLE  OF  CASES  CITED. 


XXXVll 


[BEFEBENCES   ABE   TO   SECTIONS.] 


Merritt  v.  Merritt,  630. 

V.   Simpson,  603,    734. 
Meserve  v.   Delaney,  42. 
Messenger  v.   Messenger,   382. 
Metropolitan  Nat.  Bank  v.  Jones, 

666. 
Metzen  v.   Schopp,  134,  177. 
Meyers  v.  Ladd,  173. 

V.  Pfeiffer,  625. 

V.  Temme,  726. 
Michigan  L.  Co.  v.  Forer,  667. 
Middeke  v.  Balder,  75,  835,  838. 
Middlesex  Co.  Bk.  v.  Hirsh  Bros., 

666. 
Millard    v.    Harris,    587,    589,    613. 
Mills  V.  Newberry,  75,  212,  251. 
Miller  v.  Miller,  455,  491,  494,  495, 
496. 

V.  Kingsbury,  406,   515. 

V.  Harris,   44. 

V.  Williams,    57. 

V.  Markle,  276. 

V.  Simons,  466. 

V.  Heder,    596. 

V.  Travers,    172. 

V.  Didisheim,    398. 

V.  Jones,  515,  518. 

V.  Physick,    717. 

V.  McManus,    751. 

V.  Craig,   777. 

V.    Chittenden,    865. 
Middleton  v.  Middleton,  62. 
Minkler  v.  Simons,  197. 
Miskmen  v.  Culbertson,  575. 
Mitchel  V.  McDougal,  673. 

V.  Mayo,  464,  484. 

V.  Pease,   340. 

V.  Sawyer,    643. 
Mitchinson  v.  Cross,  672. 
Mittel   V.   Karl,   197. 
Mobile  Fruit  Co.  v.   Judy  &  Son, 

607. 
Moffitt  V.  Moffitt,  390,  580. 
Moline   W.   &   P.    Co.   v.   "Webster, 
469. 


Monson  v.  Hutchinson,  298. 
Montague  v.  Selb,  582,  627. 
More  V.   More,  116,   266. 

V  Pickett,   297. 
Moore  v.  Moore,  116. 

V.  Wright,    114,    398,    651. 

V.  Lyons,    229. 

V.  Smith,    453. 

V.  Horsley,   301. 

V.  Hamilton,   527. 

V.  Bruner,  712. 
Moores  v.  Hare,  850,   855. 
Mooney  v.  Oleson,   277. 
Morgan  v.  Corlies,  678. 

V.  Roberts,   651. 

V.  Stewart,   640. 

V.  Morgan,    589.    613,    869. 

V.  Stevens,   97. 

V.  Johnson,    730. 

V.  Grand      Prairie     Seminary, 
212. 

V.  Hoydt,   776,   809. 
Morris  v.   Hogle,   588. 
Morrison  v.   Schoor,   133. 

V.  Mayer,    327. 

V.  King,    624. 

V.  Morrison,    627. 
Morton  v.  Barnett,   305. 
Morse  v.  Thorsell,   633. 
Mott  V.  Danville  Seminary,  861. 
Motsinger  v.  Cole,  469. 

V.  Wolf,    612. 
Moyer  v.   Swyggart,   264,   281. 
Mueller  v.  Rebhan,  663,  673. 
Muhkle  V.   Tiedermann,   858. 
Mulberry  v.  Mulberry,  140. 
Muller  V.  Conrad,  582,  583. 

V.  Bemner,   703,    726,    730. 
Mulligan  v.  Lamb,  215. 
Mulville  V.  White,   514. 
Murfitt    V.    Jessup,    50,    175,    179, 

874. 
Mustain  v.   Gardner,   197. 
Munford  v.  Miller,  672. 
Mungate  v.  Reynolds,  461. 


XXXVIU 


TABLE  OF  CASES  CITED. 


[BEFEBENCES   ABE  TO   SECTIONS.] 


Munroe   v.   People,   433,   434,   435, 

436.  441.  596,  760. 
Murdock  v.  Murdock,  502,  509,  607, 

636. 
Murry  v.  Strang,  450. 
Myatt  V.  Myatt,  415. 
V.  Walker,  86,  272. 


N 


Nat'l   Bank   v.   Nichols    Shephard 

Co.,  666. 
Nat'l     Cash     Reg.     Co.     v.    Navy 

Co.,   682. 
Neely   v.    Shephard,   791. 
Neiman  v.  Schnitka,  80,  263,  271, 

279. 
Neich  V.  Gannon,  653. 
Nelson  v.   Davis,   306. 

V.  Hayner,  329,  515.  521. 
Neninger  v.  Fietsam,  390,  581. 
Neutzel  v.  Neutzel,  771. 
Nevett  V.  Woodburn.  196,  198,  310, 

315,  321,  426,  427,  442. 
Nevious  V.   Gourley,    198. 
Nevell  V.  Jennings,  337. 
Newhall  v.   Nichols,   836. 

V.   Turner,   390,   440,  478,   549. 
Newell   V.   Montgomery,    578,   581. 
Newman  v.  Willetts,  119. 
Newton   v.   Luster,   268. 
New    England    Ins.    Co.    v.    Wet- 
more,  659. 
New  York  Iron  Mine  v.  Bank,  666. 
Nicewander  v.  Nicewander,  89,  91, 

277,   278. 
NiehofE  v.   People,  712. 
Nicoll  v.  Todd,  633. 
Nichol  V.   Miller,   296. 
v.  Ogden,    296. 
V.  School  Directors,  652. 
v.  Adams.   340. 
V.  Sargent.  727,  730. 
V.  Scott,    333,     390,     441,     546, 

638. 


Nicholson  v.  Bettle,  851. 
Nickrans  v.  Wilk,  580. 
Noble  V.  Runyan,  727. 

v.   Tipton,    174. 
Noble's   Will,   79,   117. 
Noe  v.  Moutray,  448.  468,  471,  484. 
Noffts  V.  Koss,   633. 
Norris  v.  Beyea,  153. 

V.    Camble.    865. 
Norman  v.  Hudleston,  530. 
Norton  v.   Tuttle.   259. 

V.  Hixon,   703. 
Northern    L.    P.    Co.    v.    Shearer, 
673. 


o 


O'Brien  v.   Bonfield,   255. 
O'Connor  v.   O'Connor.  464. 
O'Melia  v.  Mullarkey,  305,  851. 
Ogden  V.  Stook,  453. 
V.  Larrabee,  329. 
Olcott  v.  Bynum,   297. 
Oliver  v.  Oliver,  316. 
Olney   v.    Howe,    87. 
Order     of     Forresters    v.    Heath, 

684. 
Orr  V.  Yates,  857,  866. 
Osborne  v.   Jefferson   Nat'l   Bank, 

67,  68.  69.  106,  107. 
Osgood  V.  Blackmore,  819,  820. 
Ottinger  v.    Specht,   580,   582,   583, 

620,    630,   633. 
Otis   V,   Gardner.    280. 

V.  Spencer,    672. 
Ould  V.  Washington  Hospital,  213. 
Over  V.  Herrington,  530. 
Overdeer  v.  Updegraff,   822. 
Owen  V.   Robbins,   683. 


Pace  V.  Pace,  429. 

Padfield   v.   Pierce,    726. 

Page  V.  Administrator,  etc.,  116. 


TABLE  OF  CASES  CITED. 


XXXIX 


[BEFEBENCES   ABE  TO   SECTIONS.] 


Page  V.  Davidson,  603. 

V.  Marsh,  688. 
Pain  V.  Farson,  298,  663,  673. 
Palmer  v.  Forbes,  453. 

V.  Cook,  851,  872. 
Parker  v.  Merritt,  523. 
Pardridge  v.  Cutler,   666. 
Parden  v.  Briscoe,  838. 
Parsons  v.   Ely,    216. 

V.  Miller,  252. 
Patch  V.  White,  172,  173. 
Patton  V.  Luddington,   850,   855. 
Payne   v.    Hook,    47. 
Peacock  v.  Marven,  478. 
Pearce  v.  Pearce,  617,  661. 
Pease  v.   Hunt,   265,   653,   655. 

V.  Rhawn,  679. 

V.  Roberts,  707,  759,  760. 
Pell   V.   Ball,   836,  837. 
Penn  v.  Oglesby,  265,  664. 

V.  Folger,    289,    290,    392,    331, 
332,  333,  441,  586. 
Penney  v.  Fallows,  297. 
Pembia    Cons.    Sil.    Mine    Co.    v. 

Pennsylvania,   379. 
Peoria  G.  L.  &  Coke  Co.  v.  Peoria 

T.  Ry.  Co.,  377. 
Perrin   v.   Lepper,   222. 
Perry  v.  Bowman,  93,  165. 

V.  Carmichael,  703,  709. 
Petefish  V.  Becker,  80,  271,  279. 
Pettis   V.   Atkins,   515. 
Petition  of  Wilbor,  836. 
Peterson  v.  Jackson,  191. 
Peterman  v,  U.  S.  Rubber  Co.,  613. 
Peyton  v.  Jeffries,  617,  622. 
People  V.  Allen,  401,  426,  429,  471. 

V.  Admire,   600,   602. 

V.  Atkinson,  602. 

V.  Brooks,    448,    449,   526,   543, 
754. 

V.  Borders,  663. 

V.  Benson,   613. 

V.  Church,  772. 

V.  Mccormick,    131,    376,    378. 


People  V.  County  Court,  44. 
V.  Curry,    435. 
V.  Gilbert,  766. 
V  Gray,   706. 
V.  Harrison,   466. 
V.  Hoffman,     295,     401,     429, 
598. 

V.  Hunter,  426. 

V.  Knickerbocker,  126. 

V.  Kohlsaat,   290,  589.  590. 

V.  Kelly,   379. 

V.  McKee,   512. 

V.  Lease,  590. 

V.  Loomis,  733. 

V.  Lanahan,    290,   582. 

V.  Lott,    426,  436,   438. 

V.  Hinrichson,    842. 

V.  Lane,   426,   427. 

V.  Medart,   706,   749. 

V.  Madison  Co.,  683. 

V.  Moier,  374,  378,  379. 

V.  Miller,    426,    682. 

V.  Moon,  401. 

V.  Petrie,  295,  427,  429.  450. 

V.  Peck,  445. 

V.  Phelps,  450,  486. 

V.  Randolph,  401,  426. 

V.  Seeley,  706,  749. 

V.  Stewart,   713,   750,   754. 

V.  Steel,   717,   761. 

V.  Simon,    380. 

V.  Solomon,  391,  426. 

V.  Stacy,  401,   426. 

V.  Sommers,  401    405.  426. 

V.  Stett,  634. 

V.  Starr,   651. 

V.  Tooney,    429. 

V.  White,    515. 
Phares  v.   Barbour,   329. 
Phalman   v.    Smith,    546. 
Phelps    V.    Phelps,    491,    501,    508, 
592. 

Pfirshing  v.   Falsh,   611. 
V.  Heiter,    673.  , 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE   TO    SECTIONS.] 


Phillips    V.    Hood,    261. 

V.  South     Park     Comraission- 

ers,    297. 
V,  Edsall,   300. 

V,  Webster,  685. 

V.  Phillips,  726. 
Pickler  v.  Pickler,  298. 
Pigg  V.  Carroll,  661,  662,  663,  673. 
Pingree  v.  Jones,  281. 
Pinkstaff  v.   People,   435. 
Pinneo  v.  Knox,  733. 

T.  Goodspeed,  486,   587. 
Pittard  v.   Foster,  269,  270. 
Pitzel  V.   Schneider,  309. 
Plain  V.  Roth,  265,  660,  664. 
Pratt  V.  Northam,  424. 

V.  Trustees  B.   Society,  608. 
Preachers  Aid   Soc'ty  v.  England, 

178,  304,  317. 
Presbyterian    Church    v.     Emmer- 
son,    668. 

V.   Venables,   861. 
Price  V.   Laing,   307. 
Pritchett  v.  People,  424. 
Pritchard  v.  Walker,  75. 
Primmer  v.  Clabaugh,  674. 
Propst  V.  Meadows,  580,  706. 
Provident  Hospital  v.  People,  376, 

379. 
Prutsman  v.  Baker,  717. 
Podrasnik  v.   Martin   Co.,   515. 
Pool    V.    Potter,    603. 

V.  Phillips,    298. 
Pooler  V.  Christman,  92,   277. 
Pope  V.  Dapray,  299. 

V.  Pope,  141. 

V.  Dodson,    608. 
Poppers  V.   Miller,   673,   674. 
Post   V.   Roherbach,    309,   320. 
Potter  V.   Potter,   131. 

V.  People,   334. 
Poulter  V.  Poulter,  215. 
Powers  V.  Godmise,  197. 
Powell  V.  Kettelle,  606. 

V.  Rich,  452. 


Powell    V.  Powell,   660,   662. 
Purdy  V.  Hall,  92,  256,  262,  277. 
Putnam  v.  Wadley,  268. 
Pyle  V.  Pyle,  265,  270,  676. 

V.  Oustatt,   660,  672. 
Pynchon  v.  Day,  669,  678. 
Pyott  V.  Pyott,  726,  771. 


Q 


Quincey  v.   Rogers,  163. 


R 


Railway  Co.  v.  Corson,  667. 

V.  Prast,    667. 

V.  Story,    667. 

V.  Bank,   666. 

V.  Randolph,    657. 

V.  Kelly,  617,  623. 

V.  E.  St.  Louis,  847. 

V.  Curtenius,    627. 

V.  Beavor,    451. 

V.  Hock,    261. 

V.  Lane,   726. 

V.  Am.   S.  B.   Co.,  668. 

V.  Shires,  679,  683. 

V.  Winters,   683. 

V.  Eggermann,   683. 

V.  Binder,    683. 

V.  Haley,    726. 

V.  Keck,  726. 
Railsback    v.    Lovejoy,    182,    196, 

311,    852,    862. 
Rainey  v.  Vance,  523. 
Ralston  v.  Wood.  426,  427,  761. 
Ramsey  v.  Ramsey,  388,  415,  486. 
Rand  v.  Walker,  617. 
Randall    v.    Randall,    871. 
Rankin  v.  Rankin,  200,  215,  296. 
Randolph  v.  People,   616. 

V.  Trustees   of   School,    595. 
Rann  v.  Rann,  649. 


TABLE  OF  CASES  CITED. 


xli 


[BEFEBENCES    ABE    TO    SECTIONS.] 


Ransdell  v.  Boston,  303. 
Rapp  V.  Phoenix  Ins.  Co.,  606. 
Rassieur   v.   Jenkins,   464. 
Rawson  v.   Rawson,  135. 
V.  Corbett,    617. 
V.  Curtis,    666. 
Ray  Ex.  v.  Vilas,  522. 
Raybold  v.  Raybold,  297. 
Raymond  v.  Vaughn,   775. 
Reagon    v.    Long,    398. 
Ream   v.   Lynch,   754,    761. 
Redmond   v.   Collins,    127a. 
Redlich  v.   Bouerlee,  668. 
Reed   v.    Kidder,    661. 
V.  Reed,    298,   299. 
V.  Peterson,  301. 
Reed,    Murdock    &   Co.    v.    Sheffy, 

324,  333. 
Reedy   v.   Canfield,   580. 

V.   Millizen,   253. 
Reeves  v.  Herr,  672. 
Regard  v.  McNeil,  300. 
Regent  v.    Bell,    663. 
Reich   V.    Berdel,    621. 
Reid  V.   Reid,   297. 
V.  Corrigan,  232. 
V.  Morton,   739,   740. 
Rendleman  v.  Rendleman,   641. 
Renfrow  v.  Pearce,  332. 
Remick  v.   Emig,   519. 
Remann  v.  Buckmaster,  659. 
Republican  L.  Ins.  Co.  v.  Swigert, 

665. 
Retzell    V.    Miller,    467. 
Renter  v.   Struckart,   634. 
Reynolds  v.   Adams,   269,  277. 
V.  Summer,   298. 
V.  Strange,   323. 
V.  Williams,   583. 
V.  People,   591. 
V.  Ferree,    666. 
Rhode  V.   McLean,   116. 
Rhoades   v.   Rhoades,   763,   870. 
Rice  V.  Rice,  298. 
Richie  v.  Cox,  638. 


Kicker  v.  Kessler,  93,  851. 
Richards  v.   Miller,  134,   135,   249, 
250,  310. 
V.  Greene,    712. 
Richardson   v.   Eveland,   242,   243, 
247. 

V.  Ranson,    240. 

V.  Sternburg,   265. 

V.  Richardson,    448,   513. 

V.  Emberson,   613. 
Ridden   v.   Thrall,    337. 
Ridgeway  v.  McCartney,  337,  341. 

V.  Underwood,  134,  200,  310. 
Ridgeley   v.   People,    290,   586. 
Rigdon  V.  Conly,  678. 
Rigg  V.  Wilton,   127,   258,    264. 
Ring  V.  Lawless,  86,  273,  274,  279. 
Rish  V.  Commonwealth,  378. 
Rissman  v.  Wierth,  139,  176,   191, 

192. 
Roan    V.     Kirkpatrick,     390,     439, 

549,   586,   750. 
Roberts  v.  Roberts;  93,  165. 

V.  Woods,    661. 

V.  Draper,  336,  337. 

V.  Pierce,   660. 
Robertson  v.  Brost,  674. 
Robins  v.  Butler,  329. 
Robinson  v.   Brown,   682. 

V.  Ruprecht,    60. 

V.  Botkins,    296,    310. 

V.  Millard,   429. 
Robinson's   Will,    131. 
Rochey  v.   Downey,  613. 
Roe  V.  Taylor,  82,   263. 
Rogers    v.    Tuley,    318. 
Rohn  V.  Rohn,  392. 
Rohan  v.  Bluhm,  651,  776. 
Rose  V.   Hale,   134. 
Rosenthal  v.   People,   378,  379. 

V.  Prussing,   395,   413,    415. 

V.  Renick,    408,    470,    477,   579. 
Ross  V.  Sayler,  665. 

V.  Smith,    495. 
Roth  V.  Michalis,  305,  851. 


xlii 


TABLE  OF  CASES  CITED. 


Rothchlld    V.    Sessel,    668. 
Rothstein  v.  Siegel,  Cooper  &  Co., 

670. 
Roughan  v.  Morris,  771,  778. 
Rountree   v.    Talbot,   851. 
Rucker  v.  Redmon,  591. 
Ruck  V.  Rock  Island,  864. 
Ruckman  v.   Alwood,  660. 
Ruddell  V.   Wren,    854. 
Rudstone  v.  Rudstone,  168. 
Ruffin   V.   Farmer,    159,    602. 
Ruggles  V.   Gratton,   668. 
Russell   V.   Hallett,   836. 

V.  Happ,   661. 

V.  Hubbard,      464,      465,      471, 
475. 

V.  Madden,  50,  75,  95. 

V.  Peyton,  329. 
Ruston  V.  Ruston,  169. 
Rutherford  v.   Morris,   80,   84,   86, 
257,  269,   272,   275,   278,  279. 
Rutledge  v.  Rutledge,  494. 
Ryan  v.  People,  712. 

V.  Allen,  182,  193,  195. 

V.  Jones,    601. 
Ryder  v.  Topping,  676. 
Ryhiner  v.   Frank,   127,   255. 
Rymes  Appeal,  210. 


Saboni  v.  Kirkman,   606. 
Saeger  v.  Bode,  191,  196. 
Saffer  v.  Mast,  777. 
Sale  V.  Moore,  141. 
Salem  Nat'l   Bank  v.  White,  104 
Salisbury  v.  Aldrich,  82. 
Sands  v.   Potter,   777,   792. 
Sanger  v.  Nadlehoffer,  127,  428. 
Saw  Mill  Co.  V.  Dock,  389. 
Sayles  v.  Christie,  68,  75,  640,  661 
Scanlon  v.  Cobb,  777. 
Seago  V.  People,  663,  750. 
Seager  v.  Bodie,  177. 


[EEFEBENCES   ABE   TO   SECTIONS.] 

Searle  v.  Galbraith,  777,  820. 
Seavey  v.  Seavey,  336,  512. 
Sebastian  v.  Johnson,  314,  583. 
Seibert's  Appeal,  210. 
Selb  V.  Montague,  582,  627,  634. 
Sewell   V.   Roberts,   640. 
Sexton  V.    Sikking,   584. 

V.  U.   S.   Y.  &  T.   Co.,  665. 

V.  Brown,    668. 
Seymour    v.    Richardson    Fueling 

Co.,  665. 
Schaefer  v.  Schaefer,  93,  309. 

V.  Wunderle,    682. 
Schaeffer    v.    Burnette,     480,   611, 

733. 
Scheel  v.  Eidman,  485,   713. 
Scheible  v.  Rinck,   56,  638,  639. 
Scheerer  v.  Scheerer,  298,  662. 
Schelling  v.  County  of  Kankakee, 

796. 
Schenck  v.  Schenck,  130,  391,  405. 
Schlee  v.  Guckenheimer,  606. 
Schlink  v.  Moxton,  468,  484. 
Schmidt  v.   Pierce,   7  70. 

V.  Schmidt,    279. 

V.  Glade,   471. 

V.  Shaver,   666,   724,   727,   749, 
751. 

V.  McBean,    726. 
Schnell  v.  Chicago,  395,  408. 
Schneider  v.  Manning,  80,  82,  86, 
89,   270,   272. 

V.  Kabach,   674. 
Schnebly    v.    Schnebly,     617,    622, 

633. 
School    Trustees    v.    Kirwin,    325, 

703. 
Schoot  V.  People,  683. 
Schofield   V.    Olcott,   203,   849,    850, 

862,  864. 
Schope  V.  Schaffner,  634. 
Schotte  V.  Puscheck,  668. 
Schouler  Petitioner,  210. 
Schultz   V.    Houfer,    280. 

V.  Schultz.  865. 


TABLE  OF  CASES  CITED. 


xliii 


[BEFEBENCES   ABE   TO   SECTIONS.] 

Schumacher  v.  Schmidt,  100. 
Scott  V.  Bassett,  766,  777. 

V.  Scott,  64. 
Sconse  v.  Henderson,  659. 
Seigwald  v.  Seigwald,  872. 
Seymour  v.  Bowles,  851,  874. 
Sharp  V.  Sharp,  255. 
Shackelton   v.  Sebree,   856. 
Shaw  V.  Camp,  258,  281,  282,  337. 

V.  Woodcock,  323. 
Shea  V.  Doyles,  514,  664. 
Sheldon  v.  Harding,   298. 
Shelburne  v.  Robinson,   601. 
Shepard  v.   Carrill,  119. 
Shepherd  v.  Speer,  44,  648. 

V.  Nottidge,  142, 

V.  Rhodes,    432. 
Sherman  v.   Sherman,  601. 

V.  Saylor,  600. 

V.  White,    331. 

V.  Whiteside,   468,   483,   484. 
Sherrell  v.  Christ's  Church,  376. 
Shevalier  v.  Silager,  261. 
Shields  v.   Smith,   429. 
Sholty    V.    Sholty,    307,    324,    330, 

331. 
Short  V.  Johnson,  538,  550. 
Show  V.  Schoonover,  660. 
Shup  V.   Calvert,  584. 
Shute  V.   Doer,   694. 
Siddon  v.   Cocerill,  855. 
Sick  V.  Smith,  633,  642. 
Sill  V.  Sill,  617,  618. 
Silverman   v.   Chase,   490,   523. 

V.  Kristufek,  304,  305,  317. 
Simmons  v.  Oliver,  331. 
Simpson  v.   Haue,   627. 

v.  Simpson,   64,   66,    216. 
Singleton   v.   Scott,   313. 
Singloff  V.  Bruner,  258,  266,  267. 
Sisk  V.  Woodruff,   679. 
Skinner  v.  McDowell,  864. 

V.  Newberry,  449. 
Skiles  V.  Switzer,  317. 
Skrymsher  v.   Northcote,   197. 


Slater  v.  Norton,  168. 

V.  Gruger,  197. 
Sloan  V.  Graham,  583. 

V.  Sloan,   96. 
Sloniger  v.  Sloniger,  108,  633. 
Small  V.   Small,   278. 
Smith  V.  Bartholomew,  766. 

V.  Co-operative  D.  Assn.,  666. 

V.  Curry,    93. 

V.  Dennison,   225,   614. 

V.  Gibbons,  666. 

V.  Goodrich,  465,  473. 

V.  Hamline,  80,  92,  277. 

V.  Henline,  256,  258,  277,  665. 

V.  Hutchinson,  603. 

V.  Kenny,  177. 

V.  Kembell,   191. 

V.  Kimball,  851,   866,  872. 

V.  Long,   672. 

V.  McConnell,   67. 

V.  McLaughlin,  463. 

V.  Bell,  874. 

V.  Moore,   453. 

V.  Price,  534. 

V.  Smith,    379,    443,    510,    661, 
663,  673. 

V.  Summer's  Manf'g  Co.,  285, 
606. 

V.  Smock,  116. 

V.  West,  651,  662. 

V.  Willard,   298. 
Snydacker  v.   Swan  L.  &  C.  Co., 

464. 
Solomon  v.  Holden,  290,  406. 

V.  People,   406,   415,  427. 
Spades  v.  Barrett,  323. 
Spalding  v.  White,  127,  255. 
Spangler  v.  Jacoby,  679. 
Speck  V.  Pullman  P.  C.  Co.,  776. 
Spellman  v.  Dowse,  737,  740,  745. 

V.  Matthewson,   739. 
Spencer    v.    Boardman,    116,    502, 
505,  636,  662. 

V.  Spruell,   854. 
Sperry  v.   Fanning,  727. 


xliv 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE    TO    SECTIONS.] 


Spire  V.  Lovell,  489. 
Sprigg  V.  Gannemann,  657. 
Spring  V.  Crane,  737. 

V.  Kane,  739. 
Spurck  V.  Cook,  642. 
Stahl  V.   Stahl.   299. 
Standard  El.  Co.  v.  Crane  El.  Co., 

682. 
Stanley  v.  Leonard,  305. 
Stanton  v.  Embry,  47. 
Stark  V.    Conde,   855. 
Starr  v.  Moulton,  178,  603. 
Starring  v.  Keating,  532. 
State  V.  Gorman,  842. 

V.  Johnson,   401. 

V.  Corey,  401. 

V.  Young,   401. 

V.  Marm,   842. 
Steib   V.    Whitehead,    302. 
Stein  V.  "Whitehead,   90. 
Steel   V.  La  Frambois,   622. 

V.  Clark,  662. 
Stetson  V.  Stetson,  102. 
Stettaner   v.   White,   668. 
Stewart  v.  Stewart,  851. 

V.  Fellows,  143,  661. 

V.  Kirk,    265,    653. 
Strauther  v.  Mohler,  662. 
Streeter  v.  People,  127. 
Steidel  v.   People,  682,  683. 
Steinman  v.  Steinman,  512. 
Stevens    v.    Farrell,    612. 

V.  Brown,    265. 

V.  Van  Cleve,  272. 

V.  Edwards,    855. 
Stevenson  v.  Crapnell,  297. 

V.  Westfall,  703,  704. 

V.  Ernest,    682. 
Stickel  V.  Crane,  134,  237. 
Stillman  v.  Young,  471. 
Stinde  v.  Goodrich,  836. 
Stoetzell   V.    Fullerton,    609. 
Stokes  V.   Kane,   659. 
Stoff  V.  McGinn.  215,  252,  399,  546. 
Stoltz  V.  Doering,  75. 


Story's  Will,  86,  95,  96. 

Stookey  v.  Stobkey,  625. 

Stoors  V.  St.  Luke's  Hospital,  258, 

259,  260. 
Stone  V.  Steel,   633. 

V.  Clark,   464. 

V.  Haskins,  487. 

V.  Wood,   416,  468,  484,  543. 

V.  Fargo,  478. 
Stonecipher  v.  Hall,   265. 
Strawbridge   v.    Strawbridge,    134. 
Strauss  v.   Phillips,  648,   467,  468. 
Strawn  v.  Strawn,  491,  492,  495. 
Strain   v.    Sweeney,    134,   854,   866, 

874. 
Strode  v.  McCormick,  310. 
Strubher  v.  Belsey,  753. 
St.    Peters   R.    C.    Church   v.   Ger- 

maine,  208. 
Stuke  V.  Glaser,  136. 
Stunz  V.   Stunz,   497,  726. 
Sturges  V.   Ewing,  75. 
Sues  V.   Leinouh,   633. 
Sugden  v.   Lord  St.  Thomas,   267. 
Sullivan   v.    Breen,    611. 
Sumner  v.  McKee,  495. 
Summers  v.   Smith,   134,  851,  866, 
874. 

v.  Highley,   177,   312. 
Supervisors  &  etc.  v.  Colers,  401. 
Sutherland   v.    Sutherland,    636. 

V.  Harrison,   491,   496,   579. 
Sutton  V.  Read,   638. 
Supply   Co.   V.    Davis   Manf'g  Co., 

607. 
Swearington  v.  Gulick,  580. 

v.  Inmann,   86,    256,   258,   273. 
Sweitzer  v.  Skiles,  315. 

v.  Kee,  487. 
Swift  V.  Lee,  173. 


Talcott  V.   Dudley,   575. 
Tanton  v.  Keller,  663,   667. 


TABLE  OF  CASES  CITED. 


zl\r 


[BEFEBENCES   ABE   TO   SECTIONS.] 


Tarrant  v.  Kelly,  510. 
Tate  V.  Tate,  264. 
Tatum  V.  Wright,   379. 
Tautenham  v.   Dunz,   166,   204. 
Taylor  v.  Taylor,  637. 

V.  Pegram,    80,    92,    266,    271, 
277,   676. 

V.  Cox,  131. 

V,  Keep,   209. 

V.  Harrison,   340,   513. 

V.  Walson,  316,  318. 

V.  Deblois,    424. 

V.  Deplock,   836. 
Teed   v.  Morton,   855. 
Telford   v.    Patton,    336,    337,   339, 
341,   342,   378,   513. 

V.  Boggs,    495. 
Terry  v.  Anderson,  255. 
Tewalt  V.   Irwin,  464, 
The  Puritan,   665. 
The  Benefactor,   665. 
Thomas  v.  Miller,  134,  177. 

V.  Whitney,    299. 

V.  Black,    429. 

V.  Eckard,   863. 
Thompson    v.     Bennett,     80,     262, 
266,  271,  274,  277,  278. 

V.  Owen,  131. 

V.  Black,  427,  465,  485,  657. 

V.  Love,  530. 

V.  Mason,  682,  685. 

V.  Becker,  866. 

V.  Adams,  854. 

V.  Luddington,   855. 
Thorndyke  v.  City  of  Boston,  374. 
Thorp  V.  Goewery,  465. 

V.  Wheeler,   675. 
Thornton  v.  Mehrig,  526 
Tibbs  V.  Allen,  630. 
Tilden  v.  Green,  309. 
Tilton  V.  Pearson,  583. 
Tillson  V.  Ward,  390. 
Tilley  v.  Bridge,  528,   584. 
Tisdale  v.  Conn.  Mut.  L.  Ins.  Co., 
253. 


Tinkler  v.  Cox,   680. 
Tobey  v.  Miller,  398. 
Tracey  v.  Hadden,  485,  586. 
Transportation  Co.  v.  Gill,  173. 
Treleaven  v.   Dixon,   662,  673. 
Trepp  V.   Baker,  674. 
Trish  V.  Newhall,  86,  272. 
Trogdon  v.  Murphy,  871. 
Trowbridge  v.   Cross,   523. 
Trustees  of  Schools,  428. 
Trustees  v.  Garvey,   608. 
Trust  Co.  V.  Railroad  Co.,   57. 

V.  Palmer,  451,  606. 
Truesdall   v.   Burke,   392. 
Trutt  V.  Cummons,  392. 
Trunkey  v.  Hedstrom,  657. 
Tucker  v.  People,  598. 
Tuller's  Will,   88. 
Turner  v.  Hause,   177,  191. 
Turney  v.   Smith,  627. 
Tyler  v.  Tyler,  103. 

V.  Sanderson,   329. 


U 


Uhlich  V.  Muhlke,  89,  315. 
Underwood  v.  Wing,  836. 
Unknown  heirs  of  Langworthy  v. 

Baker,    395. 
Union   Surety  Co.  v.  Tenney,  667. 
Union  National  Bk.  v.  Goetz,  325. 
R.  &  T.  Co.  V.  Schacklet,  387. 

512. 

Trust  Co.  V.  Trumble.  616. 
United   States  v.   Bainbridge,   694. 

V.  Duncan,   639. 

V.  Perkins,  260. 

V.  Cheeseman,  401. 

V.  Walker,  439,   586. 
United    Mortgage    Co.    v.    Sperry, 
605,    733,   735. 

Casualty    Co.    v.    Kacer,    836, 
838. 


xlvi 


TABLE  OF  CASES  CITED. 


[BEFEBENCES   ABE   TO   SECTIONS.] 

Thompkins,    77,    167, 


Updike    V 
168. 
Ure  V.  Ure,  305,  306. 
U.  R.  &  T.  Co.  V.  Shacklett,  445 


Vallette  v.  Tedens,  298. 

V.  Bennett,    318. 
Vanderoier  v.  Fetta,  487. 
Vanderhayden  v.  Crandall,  305. 
Van  Schaak  v.  Leonard,  201. 
Van  Orlander  v.  Carpenter,  193. 
Van  Buskirk  v.  Van  Buskirk,  328, 

776. 
Van  Meter  v.  Heirs  of  Love,  €01. 
Van  Bibber  v.   Bank,   666. 
Vannetta  v.  Carr,  140,   191. 
Vestal  V.  Garrett,  110,  163,  173. 
Vidal  V.  Girard,   213. 
Village  of   Hyde   Park  v.  Bordon, 

864. 
Virgus    V.    Bannon,    662. 
Virgin  v.  Virgin,  578,  579,  580,  581, 

633,  634. 
Viskniskii  v.  Bleakley,  473. 
Volbracht  v.  White,  653,  656,  676. 
Voigt  V.  Kersten,  838. 
Voris  V.   Sloan,  190,  753,  822,  854. 
Von  Kettler  v.  Johnson,  580,  597. 
Von  Giessen  v.  Bridgford,  386. 
Vyne  v.  Glen,  323. 


W 

Wackerly  v.  People,  757,  758,  759, 

760. 
Wabash  R.   R.   Co.   v.   Schacklett, 

445. 
Wade  V.  Pritchard,  512. 
Wadswortli  v.  Duncan,  665. 
V.  Connell,  44,   417,   711. 
Wagonseller  v.   Rexford,  674. 


Walker  v.  Doan,  623,  682. 
V.  Douglas,    610. 
V.  Craig,  541. 
V.  Walker,  130,  865. 
V.  Diehl,    579. 

V.  Pritchard,     137,     138,     188, 
191,   87L 

V.  Brown,    694,    695. 

V.  People,  375,  377. 

V.  Chovin,    597. 

V.  Welber,  386. 

V.  Welker,  388. 

V.  Kimball,  420. 
Walbridge  v.  Day,  416. 
Waldo  V.  Cummings,  205,  869,  870, 

871. 
Walford  v.  Deemer,  492. 
Wallace  v.  Reddick,   64. 

V.  Bozarth,   140,   191. 

V.  Rappleye,    67. 

V.  Whitehead,  256. 

V.  Carpenter,  298. 

V.  Monroe,   488. 
Wall   V.   Bissell,   398. 
Walton  V.  Follansbee,  285,   297. 
Walters  v.  Witherell,   660. 
Walter  v.  Kirk,   541. 
Walsh  V.   Reis,   625. 
Ward  V.  Ward,  67,  68,  104,  149. 

V.  Armstrong,    315,    329. 

V.  Dunham,    468,    484. 
Wardswell  v.  McDowell,   399,  546. 
Wardwell  v.  McDonald,  218. 
Warner  v.   Scott,   610. 

V.  People,  712. 
Wanneker  v.  Hitchcock,  530. 
Washington  v.  L.  &  N.  R.  Co.,  538. 
Watt  V.  McGilliard,  707. 
Watts  V.  Dull,  105. 
Waters  v.   State,   401. 

V.  Stickney,    127a. 

V.  Waters,    273. 
Watkins  v.    Shaw,   424. 

V.   Dean,   851. 


TABLE  OF  CASES  CITED. 


xlvii 


[references  are  to  sections.] 


Waterman  v.  Alden,  295,  313,  322, 

326,  328,  532. 
Watson  V.  Watson,   275. 
Waugh  V.  Moan,  79,  117,  653. 
Waughop   V.   Bartlett,   449. 
Way  V.   Harriman,   660. 

V.  Cox,    796. 
Weaver  v.  Weaver,   501,  502,  503, 

504. 
Webster  v.  Birchmore,  253. 

V.  Yorty,  278. 

V.  Conley,  602,  730. 
Weed  v.  Waterbury,  389. 
Weeks  v.   Gibbs,   398. 
Weer  v.  Grand,  612. 
Weir  v.  Chidester,  97. 

V.  People,  424,  600. 

v.  Brooks,    451,    607. 
Weigle  V.   Brautigam,  668. 
Weill   V.    Zache,   665. 
Weingartner  v.   Pabst,  659. 
Weld  V.  Sweeney,  79. 
Welch  V.  Hoydt,  478,  528. 

V.  Wallace,   471,    475. 

V.  Savings  Bank,  169,  170, 182, 
864,  867,  868,  869,  871. 

V.  Sykes,   682. 
Wells   V.   Miller,   448,   449,   526. 
Wellman  v.   Highland,   514. 
Wellner  v.  Jones,  860. 
Werner  v.  Thornton,  215,  546,  580, 
Wernse  v.  Hall,  431. 
Wentworth  v.  Cook,  606. 
West  V.  Fitz,  140,  177,  251,  317. 

v.  Maples,  389. 
Weston  V.  Weston,  862. 
Wetheral  v.  O'Brien,  325. 

V.  Harris,  603. 
Wheeler  v.  Dawson,  464,  468,  484, 
625. 

V.  Wheeler,    127,   255. 
White  V.  Ross,   297,  299. 

V.  Cannon,  297,  300. 

V.  Briggs,  142. 

V.  Glover,  217,  316. 


White   V.   Sherman,   292,   307,  315, 

321,  324,  329,   330,  331,   332. 

White   Memorial    Home    v.    Price, 

117,  130. 
Whiteside  v.  Taylor,  707. 
Whitesides  Appeal,  253. 
Whitbeck    v.    Estate    of    Ramsey, 

485. 
Whitlock  v.   McClosky,   487. 
Whitman  v.  Baker,   163. 

V.  Fisher,    753. 
Whiting  V.  Nicholl,  253. 
Whitley  v.    Equit.    L.   A.    Society, 

836. 
Whitney  v.  Peddicord,  326,  461. 
Whittaker   v.    Whittaker,    651. 
Whitson   V.    Grovsner,   56. 
Whipple  V.  Eddy,  80,  83,  261,  274, 

279. 
Whyte  V.  Mann,  837. 
Wicker  v.  Ray,  193,  195. 
Wickliffe  v.  Lynch,  651. 
Wickiser  v.  Cook,  727. 
Wiggins  Ferry  Co.  v.  C.  &  M.  Ry. 

Co.,  191. 
Wilber  v.  Wilber,  92,  266,  274,  277. 
Wilcox  V.  Palmer,  775. 
Wilcoxon  V.  Reed,  673. 
Wild  V.  Sweeney,  124. 
Wilkins  v.  Ellett,  75,  415. 
Wilkinson  v.  Thomas,  66. 

V.  Dening,   709,  710. 
Willemin  v.  Dunn,  777. 
Will  V.  Will,  127. 
Willenborg  v.  Murphy,  449. 
Williams    v.    Williams,    173,     230, 
519. 
V.  Rogers,  579. 
V.  Brown,  298. 
V.  McConico,    305. 
V.  Chamberlain,   337,   573. 
V.  Morton,  401. 
V.  Adams,  523. 
V.  Rhodes,  591. 
V.  Johnson,  645. 


xlviii 


TABLE  OF  CASES  CITED. 


[BEFEBENCES  ABE  TO  SECTIONS.] 


"Williams  v.   Walker,  751. 

V.  Case,  116. 
Willbanks  v.  Willbanks,   201,  244. 
Willis  C.  &  M.  Co.  V.  Grizzell,  51, 

75. 
Wilson  V.  Leland,  44. 

V.  Root,  101. 

V.  Mason,   314. 

V.  Kirby,  485. 

V.  Gault,    863. 
Winchell  v.  Edwards,  667. 
Windslow   v.   Leland,  464,   471. 
Winch  V.  Brutton,  141. 
Wingate  v.  Pool,  461. 
Wing  V.   Sherrer,  116. 

V.  Angrave,   836. 

V.  Goodman,   674. 

T.  Dodge,    528,    583,    747,    781, 
820,   821,   822,   826,   827,   828. 
Wisdom  V.  Becker,  399,   600. 
Witcomb   V.    Williams,    173. 
Witham  v.  Brooner,  220,  303,  304. 

V.  People,  772. 
Witman   v.    Brooner,   856. 
Winslow  V.  People,  713,  717. 
Wood  V.  Stone,  576. 

V.  Johnson,    462,    591,    613. 

V.  Vanderburg,  489. 
Woodburn  v.  Woodburn,  300,   336. 
Woodhouse  v.  Crandali,   325. 
Woodward  v.  Woodward,  148. 
Wooley  V.   Schrader,  201,  245. 
Wolf  V.  Griffin,   600. 

Exr.  V.  Beaird,  44,  485,  592. 

V.  Bollinger,    261. 

V.  Ogden,  630. 
Wolfer  V.  Hemmer,  93,  191. 
Wolverton  v.  Taylor,  479. 


Wombacher  v.  Barthelme,  80,  271. 
Woman's   U.   M    Society  v.   Mead, 

312. 
Wright  V.  Wallbaum,  43    395,  408, 
432,    770. 
V.  Simpson,  112,  113,  114,  127, 

131,  132. 
V.  Dunn,    169,   868. 
V.  Purson,    305. 
V.  Marshall,  310. 
V.  People,  597. 
V.  Conley,   724. 
V.  Barry,   851. 
Wunderlee  v.  Wunderlee,  379. 


Yarde  v.  Yarde,  636. 
Yoe  V.  McCord,  82,  257,  272. 
Yokem  v.  Hicks,  513,  661,  664. 
Yonley  v.  Lavender,  47. 
York  V.  York,  495,  497,   526. 
Young  V.   Martin,  142. 

V.  Young,    851. 

V.  Harklervad,   854. 

V.  Larain,  708,  757,  760. 

V.  Robertson,  154. 

V.  Graft,    285. 

V.  People,    427. 

V.  Wittenmyre,  591. 


Zackman  v.  Zackman,  63,  502,  509. 
Ziegler  v.  Clinton  M.  Life  Ins.  Co., 
670. 


THE  LAW  OF  ESTATES 

AND  PROBATE  PRACTICE 


CHAPTER  I 

THE  PROBATE  COURT 


Sec. 
1. 

2. 
3. 
4. 

5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 
13. 
14. 
15. 
16. 
17. 
18. 
19. 
20. 

21. 
22. 
23. 
24. 
25. 


The  constitutional  provision 
authorizing  such  court. 

Style  of  court,  seal. 

Where  to  be  held. 

Election  of  judge,  term  of  of- 
fice. 

Judge  to  take  oath. 

Jurisdiction. 

Terms  of  court  always  open. 

Jury  trial  fees  of  jurors. 

Practice  and  pleadings. 

Duties  of  sheriff. 

When  judge  interested. 

Appeals. 

Appeal  sale  of  real  estate. 

Clerk,  election,  term. 

Clerk  to  give  bond. 

Clerk  may  appoint  deputies. 

Duties  of  clerk. 

County  board,  stationery. 

OflBces  and  furniture. 

Books  to  be  delivered  to  suc- 
cessor. 

How  records  to  be  kept. 

Fees  of  clerk. 

Clerks  fees  in  Cook  county. 

Salary  of  Judge. 

Vacancy  how  filled. 


Sec. 

26.  When  clerk  may  designate  and 

call  any  county  or  probate 
judge  to  hold  court. 

27.  Repeal  of  act. 

28.  Emergency. 

29.  Probate  Judge  not  to  act  as 

attorney,  etc. 

30.  Penalty, 

31.  Interchange  of  county  and  pro- 

bate judges. 

32.  Jurisdiction    to   control    testa- 

mentary trusts  created  by 
original  wills. 

33.  Practice  in  such  case. 

34.  Power  to  sell  real  estate,  etc., 

under  such  act, 

35.  Sales,  how  made  and  executed, 

where  executor,  etc.,  dies, 

36.  Clerks  fees,  under  act. 

37.  Not  to  be  construed  to  repeal 

land  title  act. 
3S.  Note,  Lynch  v.  Hutchinson,  act 

declared  not  legally  passed. 
Conclusive  and  mandatory 
in  certain  States,  in  others 
joui'nal  may  be  looked  in- 
to. 


Sec.  1.  The  Constitutian  of  the  State  of  Illinois  of  1870, 
granting  power  to  the  General  Assembly  to  establish  Probate 
Courts.  Article  VI,  section  20,  is  as  follows:  "The  General 
Assembly  may  provide  for  the  establishment  of  a  probate  court 

1 


3  THE  LAW  OP  ESTATES. 

in  each  county  having  a  population  of  over  fifty  thousand,  and 
for  the  election  of  a  judge  thereof,  whose  term  of  office  shall 
be  the  same  as  that  of  the  county  judge,  and  who  shall  be 
elected  at  the  same  time  and  in  the  same  manner.  Said  courts, 
when  established,  shall  have  original  jurisdiction  of  all  probate 
matters,  the  settlement  of  estates  of  deceased  persons,  the  ap- 
pointment of  guardians  and  conservators,  and  settlement  of 
their  accounts;  in  all  matters  relating  to  apprentices,  and  in 
cases  of  the  sales  of  real  estate  of  deceased  persons  for  the 
payment  of  debts.  "^  The  authority  given  by  the  con- 
stitution to  establish  probate  courts  was  exercised  by  the 
Legislature  of  Illinois,  in  1877,  when  "An  Act  to  establish 
probate  courts  in  all  counties  having  a  population  of  seventy 
thousand  or  more,  to  define  the  jurisdiction  thereof,  and  regu- 
late the  practice  therein,  and  to  fix  the  time  for  holding  the 
same."  (Title  of  act  approved  April  27,  1877,  amended  by  act 
approved  May  21,  1881.  In  force  July  1,  1881 ;  and  by  amend- 
ments thereafter  approved  and  in  force,  April  1,  1885 ;  July  1, 
1897;  July  1,  1899,  July  1,  1903;  July  1,  1905.)  Some  of  the 
original  sections  have  been  entirely  rewritten,  and  some 
amended  in  part.  The  act  relating  to  the  establishment  of 
said  court,  and  the  amendments  thereto  are  given  with  exten- 
sive authorities,  in  Starr  &  Curtis  Annotated  Statutes  of  Il- 
linois, with  Jones  &  Addington's  Supplements  thereto.^  "We 
give  the  act  as  it  now  stands,  including  the  amendment  of  1905.^ 

2.  Style  of  court — seal.  §  1.  Be  it  enacted  by  the  People 
of  the  State  of  Illinois,  represented  in  the  General  Assembly, 
That  there  shall  be  established  in  each  county  of  this  state,  now 

1— Starr     &    Curtis     Annotated  2— Vol.   1,  pp.   1194  to  1200,   in- 

Statutes  of  Illinois,  with  Jones  &  elusive,     and     authorities     cited; 

Addington's   Supplements   thereto.  Vol.   4,  pp.   370,  371,  and  authori- 

Vol.   1,  pp.   154,  155,  and  author!-  ties  cited;   Vol.  5,  p.  154,  and  au- 

ties  cited;    Vol.   4,  p.   13,   and  au-  thorities   cited;    Kurd's  R.    S.    of 

thorities  cited;  Kurd's  R.  S.  of  111.,  111.,  1905. 

1905,  p.  66.  3— Kurd's   Statutes,   pp.    627-631 

inclusive. 


THE  PROBATE  COURT.  3 

created  and  organized,  or  which  may  be  hereafter  created  and 
organized,  and  which  has  a  population  of  seventy  thousand  or 
more,  a  court  of  record,  to  be  styled  "The  Probate  Court  of 
(name  of)  County."  Such  court  shall  have  a  seal  and  may 
from  time  to  time,  as  may  be  necessary,  renew  or  alter  the 
same.  The  expense  of  such  seal  and  of  renewing  and  altering 
the  same  shall  be  paid  by  the  county.'* 

3.  Where  to  be  held.  §  2.  Said  courts  shall  be  held  in  the 
court  houses  of  the  respective  counties  in  which  they  shall  be 
established;,  or  in  the  usual  places  of  holding  courts,  or  in  suit- 
able rooms  provided  therefor  at  the  county  seat. 

4.  Election  of  judge — term  of  office.  §  3.  The  judge  of 
said  court  in  each  county  in  which  such  court  shall  be  estab- 
lished shall  be  elected  on  the  Tuesday  next  after  the  first  Mon- 
day in  November,  at  the  same  election  at  which  the  county 
judge  is  elected,  and  every  fourth  year  thereafter,  and  shall 
enter  upon  the  duties  of  his  office  on  the  first  Monday  of  De- 
cember after  his  election,  and  shall  hold  his  office  for  a  term 
of  four  years  and  until  his  successor  is  elected  and  qualified, 
and  shall  be  known  as  the  probate  judge  of  (name  of)  county. 

5.  Judg'e  to  take  oath.  §  4.  The  probate  judge  of  each 
county  in  which  a  probate  court  shall  be  established  shall, 
before  entering  upon  the  duties  of  his  office  take  and  subscribe 
and  file  with  the  secretary  of  state  the  oath  required  by  the 
constitution. 

6.  Jurisdiction.  §  5.  Probate  courts  shall  have  original 
jurisdiction  in  all  matters  of  probate,  the  settlement  of  estates 
of  deceased  persons,  the  appointment  of  guardians  and  con- 
Bervators  and  settlement  of  their  accounts,  and  in  all  matters 
relating  to  apprentices,  and  in  cases  of  the  sales  of  real  estate 
of  deceased  persons  for  the  payment  of  debts.     And  as  soon 

4 — As  amended  by  Act  approved    May  21,  1881,  in  force  July  1,  1881. 
L.  1881,  p.  72. 


4  THE  LAW  OF  ESTATES. 

as  such  court  is  organized  in  any  county,  the  county  court  of 
such  county  shall  turn  over  to  the  probate  court  all  of  its 
probate  records,  and  all  files,  books  and  papers  of  every  kind 
relating  to  probate  matters  in  such  county  court,  and  all  rec- 
ords, files  and  papers  in  matters  of  guardianship  and  con- 
servators, and  the  clerk  of  the  probate  court  shall  be  author- 
ized to  demand  and  receive  from  the  county  clerk  all  such 
records,  files,  books  and  documents,  and  upon  the  receipt 
thereof,  the  probate  court  shall  proceed  to  finish  and  complete 
all  unfinished  business  relating  to  probate,  guardianship  and 
conservatory  matters  in  the  manner  provided  by  law. 

7.  Terms  of  court — ^always  open.  §  6,  The  terms  of  the 
probate  court  shall  commence  on  the  first  Monday  of  each 
month  during  the  year,  and  shall  be  always  open  for  the 
granting  of  letters  testamentary,  letters  of  administration  and 
guardianship  and  for  the  transaction  of  probate  business  and 
all  other  matters  of  which  it  has  jurisdiction,  and  shall  con- 
tinue open  from  day  to  day  until  all  business  before  it  is  dis- 
posed of.5 

8.  Jury  trial — fees  of  jurors.  §  7.  The  probate  court  shall 
have  the  power  to  impanel  a  jury  for  the  trial  of  issues  or 
matters  of  fact  in  any  matter  or  matters  pending  before  the 
court,  and  for  such  purpose  the  court  may  at  any  time,  when 
it  becomes  necessary  to  have  a  jury,  direct  the  clerk  of  said 
court  to  issue  a  venire  for  either  six  or  twelve  competent  jurors, 
and  deliver  the  same  to  the  sheriff  or  coroner  or  any  bailiff 
of  the  court,  who  shall  summon  such  jurors  from  the  body  of 
the  county  to  be  and  appear  before  said  court  at  any  term  or 
day  named  in  such  venire,  and  if  by  reason  of  non-attendance, 
challenge  or  otherwise,  said  jury  shall  not  be  full,  the  panel 
may  be  filled  by  talesmen.  Said  court  shall  have  the  same 
power  to  compel  the  attendance  of  jurors  and  witnesses  as 

5 — As  amended  by  Act  approved  of  acts  in  conflict  herewith  are 
May  13,  1905,  in  force  July  1,  1905,  hereby  repealed.  And  by  Act  ap- 
L.  1905,  p.  188.     All  acts  or  parts     proved  May  13,  1905,  in  force  July 

1,  1905. 


THE  PROBATE  COURT.  5 

the  circuit  court  has  or  may  hereafter  have,  and  jurors  to  act 
as  such  in  said  court  shall  possess  the  same  qualifications  and 
be  entitled  to  the  same  privileges  of  exemption  and  subject 
to  the  same  rules  of  challenge  for  cause  or  peremptorily  as 
jurors  in  the  circuit  courts  of  the  state.  "When  such  jury  shall 
be  brought  into  said  court,  the  court  may  retain  such  jury 
during  the  term  or  any  portion  thereof,  as  may  be  necessary 
for  the  trial  of  any  matter  or  matters  of  fact  which  in  the 
discretion  of  the  court  requires  a  jury.  The  per  diem  and 
mileage  of  said  jurors  shall  be  the  same  as  they  are  for  jurors 
in  the  circuit  court,  to  be  paid  out  of  the  county  treasury  upon 
the  presentation  of  a  certificate  of  the  clerk  of  said  court, 
issued  to  each  juror  at  the  time  of  their  discharge,  certifying 
to  the  number  of  days  he  may  have  attended  court  as  a  juror 
and  the  amount  of  juror's  fees  and  mileage  due  him. 

9.  Practice  and  Pleadings.  §  8.  The  process,  practice  and 
pleadings  in  said  court  shall  be  the  same  as  those  now  provided, 
or  which  may  hereafter  be  provided,  for  the  probate  practice 
in  the  county  courts  of  the  state,  and  all  laws  now  in  force, 
or  which  may  hereafter  be  enacted  concerning  wills,  or  the 
administration  of  estates,  shall  govern  and  be  applicable  to 
the  practice  in  the  probate  courts  of  the  state. 

10.  Duties  of  sheriff.  §  9.  The  sheriff,  in  person  or  by  his 
deputy,  shall  attend  the  sittings  of  the  probate  court  of  his 
county,  preserve  order  in  the  same  and  execute  the  legal  com- 
mands and  process  thereof. 

11.  When  judge  interested.  §  10.  Whenever  the  probate 
judge  of  any  county  is  interested  in  the  estate  of  any  deceased 
person,  and  the  letters  testamentary  or  of  administration  shall 
be  grantable  in  the  county  of  such  judge,  such  estate  shall 
be  probated  in  the  county  court  of  such  county,  unless  the 
county  judge  be  also  interested,  in  which  event  the  facts  of 
such  interest  may  be  entered  of  record  in  the  probate  court 
of  the  county  and  certified  to  the  circuit  court  of  the  county, 
and  upon  the  filing  of  such  certificate  with  the  clerk  of  the 


6  THE  LAW  OF  ESTATES. 

circuit  court,  such  court  shall  have  full  and  complete  jurisdiction 
in  all  matters  pertaining  to  such  estate  under  all  laws  of  this 
state  concerning  the  administration  of  estates  or  the  probate 
of  wills,  and  in  all  cases  so  transferred  the  clerk  of  said  circuit 
court  shall  have  the  same  power  in  all  matters  of  such  estate, 
in  term  time  or  vacation,  that  the  clerk  of  the  probate  or 
county  court  has:  Provided,  that,  if  the  probate  judge  is  only 
interested  as  a  creditor,  no  change  may  be  made  except  in 
relation  to  his  claim. 

12.  Appeals.  §  11.  Appeals  may  be  taken  from  the  final 
orders,  judgments  and  decrees  of  the  probate  courts  to  the 
circuit  court  of  their  respective  counties  in  all  matters  except 
in  proceedings  on  the  application  of  executors,  administrators, 
guardians  and  conservators  for  the  sale  of  real  estate,  upon 
the  appellant  giving  bond  and  security  in  such  amount  and 
upon  such  condition  as  the  court  shall  approve,  and  upon  such 
appeal  the  case  shall  be  tried  de  novo. 

13.  Appeals — sale  of  real  estate.  §  12.  Appeals  and  writs 
of  error  may  be  taken  and  prosecuted  from  the  final  orders 
and  decrees  of  the  probate  court  to  the  supreme  court  in  pro- 
ceedings on  the  application  of  executors,  administrators,  guard- 
ians and  conservators  for  the  sale  of  real  estate.  Such  appeals 
and  writs  of  error,  when  not  otherwise  provided,  shall  be  taken 
and  prosecuted  in  the  same  manner  as  appeals  from  and  writs 
of  error  to  the  circuit  court. 

14.  Clerks — ^election — ^term.  §  13.  There  shall  be  elected 
at  the  same  time  as  the  probate  judge  is  elected  a  clerk  of  the 
probate  court,  who  shall  hold  his  office  for  a  term  of  four  years 
and  until  his  successor  shall  be  elected  and  qualified.  Before 
entering  upon  the  duties  of  his  office  he  shall  take  and  sub- 
scribe the  oath  required  by  the  constitution  of  the  state. 

15.  Clerk  to  give  bond.  §  14.  Every  clerk  shall,  before 
entering  upon  the  duties  of  his  office,  give  bond  with  two  or 
more  sureties,  to  be  approved  by  the  judge  of  the  court  of 


THE  PEOBATE  COURT.  7 

which  he  is  clerk,  which  bond  shall  be  in  such  penalty,  not 
less  than  five  thousand  dollars  ($5,000),  as  may  be  determined 
by  such  judge,  payable  to  the  People  of  the  State  of  Illinois, 
and  conditioned  for  the  faithful  performance  of  the  duties  of 
his  office  and  to  pay  over  all  moneys  that  may  come  to  his 
hands  by  virtue  of  his  office  to  the  parties  entitled  thereto,  and 
to  deliver  up  to  his  successor  in  office  all  moneys,  papers,  books, 
records  and  other  things  appertaining  to  his  office  whole,  safe 
and  undefaced,  which  bond  shall  be  copied  at  large  upon  the 
records  of  the  court  and  then  filed  in  the  office  of  the  secretary 
of  state,  upon  which  such  clerk  shall  be  immediately  commis- 
sioned by  the  governor  and  enter  upon  the  duties  of  his  office. 

16.  Clerk  may  appoint  deputy.  §  15.  Every  such  clerk 
shall  attend  in  person  to  the  duties  of  his  office  when  it  is 
practicable  so  to  do,  and  perform  all  the  duties  thereof  which 
can  reasonably  be  performed  by  one  person:  Provided,  how- 
ever, he  may,  when  necessary,  appoint  deputies,  who  shall  take 
the  same  oath  or  affirmation  as  is  required  of  the  principal 
clerk,  which  shall  be  entered  at  large  upon  the  records  of  the 
court,  and  the  principal  clerk  shall  in  all  cases  be  responsible 
for  the  acts  or  omissions  of  his  deputies. 

17.  Duties  of  Clerk.  §  16.  Every  such  clerk  shall  attend 
the  sessions  of  their  respective  courts,  issue  all  process  thereof, 
preserve  all  the  files  and  pages  thereof,  make,  keep  and  pre- 
serve complete  records  of  all  the  proceedings  and  determina- 
tions thereof,  and  do  and  perform  all  other  duties  pertaining 
to  their  said  offices  as  may  be  required  by  law  or  the  rules  and 
order  of  their  courts  respectively,  and  shall  enter  of  record  all 
judgments,  decrees  and  orders  of  their  respective  courts  before 
the  final  adjournment  of  the  respective  terms  thereof  or  as 
soon  thereafter  as  practicable. 

18.  County  board— stationery.  §  17.  It  shall  be  the  duty 
of  the  county  board  of  every  county  in  which  there  shall  be 
established  a  probate  court  in  pursuance  of  this  act,  to  provide 
the  clerk  thereof  with  all  necessary  blanks,  books,  stationery. 


8  THE  LAW  OF  ESTATES. 

pens  and  ink  for  their  respective  offices,  the  same  to  be  paid 
for  out  of  the  county  treasury,  and  in  case  such  supplies  shall 
not  be  so  furnished,  then  the  clerk  of  such  court  shall  furnish 
the  same  from  time  to  time  as  may  be  necessary,  the  cost 
thereof  to  be  allowed  by  the  county  board  and  paid  out  of 
the  county  treasury. 

19.  Offices  and  furniture.  §  18.  The  necessary  rooms,  of- 
fice and  furniture,  the  proper  vaults  or  other  safe  means  of 
keeping  the  archives  of  their  respective  offices  shall  be  provided 
for  the  clerks  of  the  probate  courts  in  their  respective  counties 
by  the  county  and  the  cost  thereof  paid  out  of  the  county 
treasury. 

20.  Books  to  be  delivered  to  successor.  §  19.  It  shall  be 
the  duty  of  the  probate  clerk  to  deliver  over  to  his  successor 
in  office,  and  of  his  successor  to  demand  and  receive  from  him, 
all  the  books,  papers,  records  and  other  things  appertaining 
to  his  office,  or  in  his  possession  by  virtue  of  his  office,  and 
should  he  refuse  or  neglect  to  do  so,  the  court  shall  have 
power  to  use  such  compulsory  process  and  take  such  measures 
as  may  be  necessary  to  compel  the  delivery  as  aforesaid,  ac- 
cording to  the  true  intent  and  meaning  hereof. 

21.  How  records  to  be  kept.  §  20.  In  all  matters  con- 
cerning the  probate  of  the  estates  of  deceased  persons,  the 
granting  of  letters  testamentary  or  of  administration,  letters 
of  guardianship,  the  manner  of  keeping  the  records  of  said 
court,  the  form  of  docket  entries,  journals,  fee  books,  mem- 
orandums, the  form  of  process,  the  recording  of  papers  and 
documents  connected  with  any  matter  of  which  said  court  has 
jurisdiction,  the  clerk  of  said  court  shall  be  governed  by  and 
follow  all  laws  now  in  force,  or  which  may  hereafter  be 
enacted,  concerning  similar  matters  in  the  county  courts  of 
the  state. 

22.  Fees  of  clerk.  §  21.  The  clerk  of  the  probate  court 
shall  charge  and  collect  for  each  official  act  the  same  fees  as 


THE  PEOBATE  COURT.  9 

are  allowed  to  clerks  of  the  county  courts  of  the  state  in  pro- 
bate matters,  which  fees  shall  be  charged  in  accordance  with 
the  laws  now  in  force  or  which  may  hereafter  be  enacted  con- 
cerning fees  and  salaries,  and  according  to  the  class  to  which 
the  county  belongs.  Such  clerk  shall  keep  full,  true  and  cor- 
rect accounts  of  all  fees  collected  by  him  and  report  the  same 
in  accordance  with  said  laws,  for  the  keeping  of  which  accounts 
no  fees  shall  be  allowed  such  clerk,  and  the  same  shall  be 
open  for  inspection  by  the  county  board,  in  accordance  with 
said  laws,  and  all  fees  in  excess  of  the  compensation  allowed 
to  such  clerk,  and  necessary  clerk  hire  and  other  expenses, 
shall  be  paid  into  the  county  treasury  in  accordance  with  said 
laws  concerning  fees  and  salaries.^ 

23.  Clerk's  fees  in  Cook  Coouity.  §  22.  Clerks  of  the  pro- 
bate court  shall  receive  such  compensation  or  salary  as  shall 
be  allowed  them  by  the  county  board,  together  with  the  amount 
of  their  necessary  clerk  hire,  stationery,  fuel  and  other  ex- 
penses, in  accordance  with  the  provisions  of  the  constitution: 
Provided,  that  in  the  county  of  Cook  the  probate  clerk  shall 
receive,  aside  from  clerk  hire,  necessary  expenses  for  fuel  and 
stationery,  the  sum  of  three  thousand  dollars  ($3,000)  per 
annum  as  his  only  compensation,  to  be  paid  out  of  the  fees  of 
his  office. 

24.  Salary  of  judge.  §  23.  Probate  judges  shall  be  allowed 
such  salary  as  shall  be  fixed  by  their  respective  county  boards, 
to  be  paid  out  of  the  county  treasury. 

25.  Vacancy— <liow  filled.  §  24.  When  a  vacancy  shall  oc- 
cur in  the  office  of  judge  of  the  probate  court  of  any  county, 
the  clerk  of  the  court  in  which  the  vacancy  shall  exist  shall 
notify  the  governor  of  such  vacancy.  If  the  unexpired  term 
of  the  office  made  vacant  is  less  than  one  year,  at  the  time  the 
vacancy  occurs,  the  governor  shall  fill  such  vacancy  by  ap- 
pointment; but  if  the  unexpired  term  exceeds  one  year,  the 

6— See     Chapter    ^9,     "Fees     of    Clerks  of  Probate  Courts  in  Clas- 
sified Counties." 


10  THE  LAW  OP  ESTATES. 

governor  shall  issue  a  writ  of  election  as  in  other  eases  of 
vacancy  to  be  filled  by  election. 

26.  When  clerk  may  designate  and  call  any  county  or  pro- 
bate judge  to  hold  court.  §  1.  That  in  case  of  the  death, 
resignation  or  inability  of  the  judge  of  a  county  or  probate 
court,  of  any  county,  the  clerk  of  such  court  shall  designate 
and  call  any  county  or  probate  judge  to  hold  such  county  or 
probate  court;  and  such  county  or  probate  judge,  when  so 
designated  and  called,  may  hold  such  county  or  probate  court 
and  perform  all  the  duties  of  the  judge  thereof  until  the  ap- 
pointment or  election  of  his  successor,  or  until  the  disability 
to  act  ceases.'^ 

27.  Repeal  of  act.  §2.  The  act  entitled  "An  Act  to  author- 
ize county  judges  to  perform  the  duties  of  judges  of  probate 
courts,  in  certain  cases,"  approved  May  23,  1883,  is  hereby 
repealed. 

28.  Emergency.  §  3.  Whereas,  there  has  been  a  recent 
death  of  a  county  judge,  and  a  necessity  thereby  created  to 
authorize  a  county  or  probate  judge  to  perform  the  duties  of 
the  office  of  such  deceased  judge;  therefore  an  emergency 
exists  and  this  act  shall  be  in  force  from  and  after  its  passage. 

29.  Probate  judge  not  to  act  as  attorney,  etc.  §  1.  That  it 
shall  be  unlawful  for  any  judge  of  any  county  or  probate  court, 
in  this  state,  to  act  as  attorney  or  solicitor  for  or  against  any 
widow  or  heirs  or  other  person  or  persons  interested  in  the 
estate  of  any  deceased  person,  in  respect  to  the  estate,  real  or 
personal,  of  such  deceased  person,  when  administration  on  the 
estate  of  such  deceased  person  is  pending  in  said  court  and 
final  settlement  thereof  has  not  been  made. 

30.  Penalty.  §  2.  That  any  county  or  probate  judge  who 
shall  violate  the  provisions  of  this  act  shall  be  fined  not  less 
than  fifty  dollars  nor  more  than  one  thousand  dollars,  and 
upon  conviction  of  the  second  offense  shall  be  removed  from  his 
office. 

7 — As  amended  by  Act  approved     April    24,    1899,    in    force    July   1, 
1899.     Laws  of  1899,  p.  130. 


THE  PROBATE  COURT.  11 

31.  Interchange  of  county  and  probate  judges.  Paragraph 
215h,  a  part  of  the  county  court  act,  Hurd's  Statutes,  1901, 
page  570,  applies  also  to  probate  court.  "That  the  county  and 
probate  judges  in  the  several  counties  of  this  state,  with  like 
privileges  as  the  judges  of  the  circuit  courts  of  this  state,  may 
interchange  with  each  other,  hold  court  for  each  other,  and 
perform  each  other's  duties,  in  their  own  or  any  other  county, 
when  they  find  it  necessary  or  convenient." 

32.  Jurisdiction  to  control  testamentary  trusts  created  by 
original  wills.  §  1.  That  original  jurisdiction  is  hereby  con- 
ferred upon  probate  courts  and  county  courts  in  counties  where 
no  probate  courts  are  now,  or  may  hereafter  be  established 
according  to  law  to  supervise  and  control  all  testamentary 
trusts  created  by  original  wills  of  deceased  persons  proved  and 
admitted  to  probate  in  such  court.  The  jurisdiction  hereby 
conferred  shall  include  the  appointments  and  removals  of  trus- 
tees, the  issuing  of  letters  of  trusteeship  to  such  trustees, 
the  fixing  and  approving  of  their  bonds  and  the  settlement 
of  their  accounts;  and  in  regard  thereto  said  court  shall  have 
and  exercise  full  chancery  powers. 

33.  Practice.  §  2.  The  practice  in  such  matters  of  testa- 
mentary trusts  in  probate  or  county  courts  as  herein  provided 
shall  be  as  nearly  as  may  be  analogous  to  that  now  existing 
in  the  probate  and  settlement  of  testate  estates.  The  court 
shall  have  power  in  a  summary  manner  to  require  the  filing  of 
accounts  of  testamentary  trustees  and  to  enforce  all  orders  in 
relation  thereto  by  citation  or  attachment  in  the  same  manner 
as  is  now  provided  by  law  in  case  of  executors  and  adminis- 
trators. 

34.  Power  to  sell  real  estate.  §  3.  The  supervision  and 
control  of  testamentary  trusts  vested  by  this  act  in  probate 
courts  and  county  courts  in  counties  where  no  probate  courts 
are  now,  or  may  hereafter  be  established  according  to  law, 
shall  extend  to  and  include  the  power  in  such  courts  to  order 
the  sale  of  the  real  estate  to  which  any  testator  had  claim  or 


12  THE  LAW  OF  ESTATES. 

title,  or  such  part  thereof  as  may  be  necessary,  for  the  payment 
of  legacies  or  other  charges  made  thereon  by  the  testator,  and 
in  cases  where  the  court  shall  find  it  necessary  or  expedient 
for  the  complete  execution  of  the  will  of  the  testator  and  the 
equitable  distribution  of  his  estate  in  accordance  therewith, 
that  such  real  estate  or  a  part  thereof  be  sold.  In  the  exercise 
of  this  power  such  courts  shall  proceed,  as  near  as  may  be,  in 
conformity  with  the  procedure  established  by  law  for  the  sale 
of  real  estate  to  pay  debts  in  courts  having  probate  jurisdic- 
tion. 

35.  Sales,  how  made  and  executed — where  executor,  etc., 
dies.  §  4.  All  such  sales  of  real  estate  shall  be  made,  and  con- 
veyances executed  for  the  same  by  the  executor,  administrator 
with  the  will  annexed,  or  testamentary  trustee  applying  for 
such  order  and  shall  be  valid  and  effectual  against  the  heirs 
and  devisees  of  such  testator,  and  all  other  persons  claiming  by, 
through  or  under  him  or  them.  In  case  of  the  death  of  the 
executor,  administrator  with  the  will  annexed  or  testamentary 
trustee  applying  for  an  order  of  sale  before  conveyance  is 
made,  his  successor  shall  proceed  in  the  premises  and  make 
conveyance  in  the  same  manner  as  if  he  had  originally  applied 
for  such  order,  which  conveyance  shall  be  good  and  valid. 

36.  Clerk's  fees.  §  5.  The  clerks  of  probate  and  county 
courts  having  probate  jurisdiction  shall  be  entitled  to  take  fees 
as  are  now,  or  hereafter  may  be  authorized  by  law  for  like 
services  in  the  matter  of  the  estates  of  deceased  persons,  but 
no  docket  fee  shall  be  charged  against  any  estate  so  held  in 
trust  where  the  original  estate  when  probated  was  charged 
and  paid  a  docket  fee  as  provided  by  law. 

37.  Not  to  be  construed  to  repeal  land  title  act.  §  6.  Noth- 
ing in  the  act  contained  shall  be  construed  as  repealing  any  of 
the  provisions  of  an  act  entitled,  "An  Act  concerning  land 
titles,"  approved  and  in  force  May  1,  1897,  nor  any  of  the 
provisions  of  an  act  entitled,  "An  Act  to  amend  sections  seven 
(7)  and  eighteen  (18)  of  an  act  entitled,  'An  Act  concerning 


THE   PROBATE   COURT.  ,  13 

land  titles,'  approved  and  in  force  May  1,  1897,"  approved 
May  18,  1903,  and  in  force  July  1,  1903. 

The  bill  (containing  the  six  sections  in  question)  having  re- 
mained with  the  Governor  for  a  period  of  ten  days  (Sunday 
excepted)  after  the  adjournment  of  the  General  Assembly,  and 
he  not  having  filed  it  with  his  objections  thereto  in  the  office 
of  the  Secretary  of  State,  it  becomes  a  law  in  like  manner  as 
if  he  had  signed  it. 

JAMES  A.  ROSE,  Secretary  of  State. 

Note — It  appears  from  the  enrolled  bill  filed  in  this  office 
that  the  presiding  officer  of  the  Senate  did  not  sign  the  same, 
but  the  records  of  this  office  show  that  said  bill,  designated  as 
Senate  Bill  No.  118,  passed  the  Senate  March  28,  1905,  re- 
ceiving 30  affirmative  votes  and  2  negative  votes,  and  that  the 
said  bill  with  House  amendments,  passed  the  House  of  Repre- 
sentatives May  5,  1905,  receiving  113  affirmative  votes  and  7 
negative  votes;  and  the  records  further  show  that  the  Senate 
concurred  in  the  House  amendments  May  5,  1905,  there  being 
27  votes  in  favor  of  concurring  and  no  negative  votes. 

JAMES  A.  ROSE,  Secretary  of  State. 

38.  Note.  The  case  of  Lynch  v.  Hutchinson,  219  111.  193, 
appealed  direct  from  the  probate  court  of  Cook  county  to  the 
October  term  of  the  Supreme  court  of  Illinois,  was  by  that 
court  decided  and  its  opinion  handed  down  in  December,  1905. 
In  substance  it  is  held:  That  the  Act  of  1905,  extending  the 
jurisdiction  of  probate  and  county  courts  having  probate  juris- 
diction, and  giving  such  courts  full  jurisdiction  and 
control  of  testamentary  trusts  is  not  a  valid  law;  the 
law  in  question  was  not  passed  in  compliance  with  the  con- 
stitutional provisions  of  this  State,  that  is  to  say,  the  President 
of  the  Senate  and  the  Speaker  of  the  House  of  Representatives 
did  not  certify  the  law  as  required  by  the  constitution,  and 
therefore  the  act  was  not  properly  passed  as  a  law.    It  is  also 


14  THE  LAW  OF  ESTATES. 

held  in  that  case,  that  every  bill  which  has  passed  both  houses, 
must  be  signed  by  the  President  of  the  Senate,  and  the  Speaker 
of  the  House,  this  being  mandatory,  even  though  such  signa- 
tures are  not  conclusive  evidence  that  the  bill  was  properly 
passed. 

Note.  In  those  States  where  the  enrolled  bill,  duly  authen- 
ticated, is  held  to  be  conclusive  evidence  of  its  passage,  the 
provision  has  uniformly  been  held  to  be  mandatory;  while  in 
those  States,  where  the  journal  of  the  respective  hoiLses  may  be 
looked  into  to  determine  whether  the  bill  was  passed  in  com- 
pliance with  the  constitutional  provisions,  there  exists  a  con- 
flict of  authority. s 

8— 26  Am.  &  Eng.  Ency.  of  Law,  State,  45  Ohio  St.  263;  Cooley's 
2d  ed.,  p.  545.     See  Keiswettor  v.    Const.  Lim.,  2d  ed.,  p.   152. 


CHAPTER  II 

JURISDICTION  OF  PROBATE  COURTS 


Sec, 

39.  Jurisdiction    of    Probate    and 

County  courts  having  pro- 
bate jurisdiction. 

40.  Jurisdiction   defined. 

41.  Klokke  v.  Dodge. 

42.  Meserve  v.  Delany. 

43.  Jurisdiction  of  probate  courts 

are  as  conclusive  as  that 
of  any  court  of  common 
law  jurisdiction. 

44.  The    Illinois    decisions    recog- 

nize    the     jurisdiction     of 


Sec. 

such  courts  extensively  in 
law  and  equity. 

45.  Chancery    courts    have    estab- 

lished almost  a  universal 
rule  of  jurisdiction  in  pro- 
bate courts. 

46.  Testamentary  trusts  and  trus- 

tees. 

47.  The  Federal  courts  take  juris- 

diction in  matter  of  estates 
when? 

48.  Yonley  v.  Lavender, 

49.  Byers  v.  McAuley. 


Sec.  39.  Jurisdiction  of  probate  and  county  courts  having 
probate  jurisdiction.  The  jurisdiction  of  probate  courts  is 
fixed  by  section  20  of  article  6  of  the  constitution  of  1870,  and 
by  the  Act  to  establish  probate  courts,  approved  April  27, 
1877,  conferring  jurisdiction  in  the  language  of  the  constitu- 
tion, viz. :  Said  courts,  when  established,  shall  have  original 
jurisdiction  of  all  probate  matters,  the  settlement  of  estates  of 
deceased  persons,  the  appointment  of  guardians  and  conserva- 
tors, and  settlement  of  their  accounts.^ 

40.  Jurisdiction  defined.  Bouvier's  Law  Dictionary  defines 
"jurisdiction"  as  the  authority  by  which  judicial  officers  take 
cognizance  of  and  decide  cases;  power  to  hear  and  determine 
a  case;  the  right  of  a  judge  to  pronounce  a  sentence  of  the 
law  in  a  case  or  issue  before  him,  acquired  through  the  process 
of  law. 


1— Chicago  Title  &  Trust  Co,  v.     Brown,  183  111,  42. 
of  this  work. 
15 


See  chapter  I 


16  THE  LAW  OF  ESTATES. 

41.  In  Klokke  v.  Dodge,^  it  is  said:  It  is  appar- 
ent, then,  that  county  courts  in  all  the  counties  of  the  state 
have,  and  must  have  under  the  constitution,  the  same  powers 
and  jurisdiction,  whether  probate  courts  are  established  in 
some  of  them  or  not;  and  hence  constitute  a  "class  of 
courts,"  within  the  meaning  of  that  instrument,  eoncerning 
which  all  laws  must  be  general,  and  of  uniform  operation. 

42.  In  the  case  of  Meserve  Exr.  v.  Delany,^  it  is 
said:  This  case  comes  directly  to  this  court  because  the  sole 
question  discussed  is  the  constitutionality  of  that  portion  of 
the  statute  of  April  27,  1877,  pursuant  to  which  the  probate 
records  and  files  of  the  county  court  of  Cook  county  was 
transferred  to  the  probate  court  of  that  county.  This 
court  held  in  Knickerbocker  v.  The  People,'^  that  so  much  of  the 
act  above  referred  to  as  created  the  probate  court  was  constitu- 
tional, and  this  was  subsequently  reiterated  in  Klokke  v.  Dodge.^ 
And  a  majority  of  the  court  are  still  of  the  opinion  announced 
in  Klokke  v.  Dodge,  supra,  that  the  creation  of  the  probate  court 
divested  the  county  court  of  all  probate  jurisdiction. 

43.  Jurisdiction  of  Probate  Courts  are  as  conclusive  as  that 
of  any  court  of  common  law  jurisdiction.  When  acting  under 
the  power  conferred  upon  them,  such  courts  are  entitled  to  the 
same  presumptions  in  their  favor  when  collaterally  assailed 
as  other  courts.  In  most  of  the  states  by  express  statutes,  or 
by  a  long  line  of  judicial  decisions  the  orders  and  decrees  of 
probate  courts,  when  acting  within  their  powers,  are  as  bind- 
ing as  that  of  other  courts  and  will  generally  be  upheld.® 

44.  The  Illinois  decisions  recognize  the  jurisdiction  of  such 
courts.     As  clothed  with  jurisdiction  in  all  matters  of  pro- 

2—103  111.  129.  V.  People,  66  III.  178;  Bostwick  v. 

3—105  111.  55.  Skinner,    SO    111.    147;    Johnson   v. 

4—102   111.  218.  Mellhorsen,  105  111.  App.  368;   De- 

5—103  111.  125.  milly  v.  Grosrenand,  201  111.  273; 

6— Wright  V.  Wallbaum,  39  111.  Clewes  v.  Fox,  25  Colo.  39;  Frencb 

554;    Duffin  v.  Abbott,   48  111.  17;  v.  Woodruff,  25  Ck)lo.  349. 
Hobson  V.  Ewan,  62  111.  146;  House 


JURISDICTION  OF  PROBATE  COURTS.  17 

bate,  the  settlement  of  estates  of  deceased  persons,  appoint- 
ment of  guardians  and  conservators  and  settlements  of  their 
accounts.  It  is  confined  to  the  exercise  of  legal  power,  but 
may  also  exercise  equitable  power  in  the  adjudication  of  all 
matters  pertaining  to  the  settlement  of  estates.  And  it  is  only 
in  extraordinary  cases  that  a  court  of  equity  assumes  jurisdic- 
tion in  the  settlement  of  an  estate  and  supersedes  the  probate 
court,  which  has  ample  power  to  adjust  and  settle  equitable 
rights  and  claims  of  parties  as  far  as  it  has  authority  under 
the  statute  and  decisions  of  the  courts  of  last  resort.'^ 

And  it  appears  to  be  settled  in  Colorado,  that  where  it  be- 
comes necessary  in  the  settlement  and  distribution  of  the  estate 
of  a  testator  the  court  of  probate  has  power  to  construe  wills 
that  may  involve  the  settlement  and  distribution  of  an  estate 
under  administration.^ 

45.  Chancery  Courts  have  established  almost  a  universal 
rule  of  jurisdiction  in  Probate  Courts.  It  has  been  repeatedly 
held,  that  a  court  of  chancery  will  not  exercise  jurisdiction 
at  the  instance  of  the  personal  representatives,  creditors,  lega- 
tees, or  distributees,  unless  some  special  circumstances  are 
shown,  why  the  probate  court  cannot  afford  adequate  remedy 
in  the  premises;  and  this  rule  is  adhered  to  more  particularly 
where  the  estate  is  already  in  process  of  settlement  in  the 
probate  court.  But  it  appears  the  exception  to  this  established 
rule  is,  that  gross  mismanagement  by  the  executor,  both  as  to 
real  and  personal  property,  and  a  breach  of  trust  as  to  the  sale 
of  the  real  estate,  and  the  fraud  and  collusion  of  the  executor 

7— Wadsworth    v.    Connell,    104  238;   Ames  v.  Ames,  148   111.  321; 

111.   369;    Doggett  v.   Dill,   108   111.  Duval  v.  Duval,  153  111.  49;  Good- 

560;  Miller  v.  Harris,  119  111.  185;  man  v,  Kopperl,  169  III.  136;   Et- 

McCall  V.  Lee,  120  111.  261;   Wolf,  ling  v.   First  National   Bank,   173 

Exr.,  V.   Beaird   et   al.   Exrs.,   123  111.  368. 

111.  585;  Estate  of  Corrington.  124  8— People    v.    County    Court,    3 

111.  363;  Wilson  v.  Leland,  128  111.  Colo.  Ct.   of  App.  425. 
304;    Shepherd   v.    Speer,    140    111. 


18  THE  LAW  OF  ESTATES. 

or  executrix,  are  grounds  for  equitable  interference  by  a  court 
of  chancery.^ 

46.  Testamentary  trusts  and  trustees.  Should  the  Act  of 
July  1,  1905,  extending  jurisdiction  of  probate  and  county 
courts  having  probate  jurisdiction,  be  held  constitutional, 
then  such  courts  will  have  original  jurisdiction  to  super- 
vise and  control  all  testamentary  trusts,  created  by  original 
wills  of  deceased  persons  proved  and  admitted  to  probate 
in  such  courts;  with  power  to  appoint  and  remove  testa- 
mentary trustees;  issue  letters  of  trusteeship  and  fix  and 
approve  of  the  bonds  of  such  trustees,  and  settle  their 
accounts.  Also  power  to  sell  real  estate,  to  which  any  tes- 
tator or  testatrix  had  claim  or  title,  or  such  part  thereof 
as  may  be  necessary  for  the  payment  of  legacies,  or  charges 
made  thereon  by  the  testator  or  testatrix ;  general  power  being 
conferred  by  said  Act  of  July  1,  1905,  to  fully  administer  such 
trust  estates.^ ^ 

47.  The  Federal  Cotirts  take  jurisdiction  in  matters  of 
estates  when?  The  right  to  sue  the  administrator  of  an  estate 
in  the  federal  court  where  the  requisite  diversity  of  citizenship 
exists  is  indisputable.^^  The  fact  that  the  complainants  have 
likewise  proven  their  claims  in  the  state  court  constitutes  no  bar 
to  the  proceedings  in  the  federal  court.  These  courts  are  foreign 
to  each  other.^^  The  mere  pending  of  a  prior  suit  in  a.  state 
court,  though  it  be  between  the  same  parties,  and  upon  the 
identical  cause  of  action,  will  not  prevent  the  Federal  Court 
from  taking  jurisdiction.^^ 

9— Etling      V.      First     National  11— Payne  v.  Hook,  7  Wall.  425; 

Bank,    173   111.    368;    Goodman   v.  Yonley  v.  Lavender,  21  Wall.  276; 

Kopperl,    169    111.    136;    Duval    v.  Byers  v.  McAuley.  149  U.  S.  608. 

Duval,  153  111.  53;  Ames  v.  Ames,  12 — Louisville  T.  Co.   v.   Cincin- 

148  111.  321 ;  Harding  v.  Shephard,  nati,   22   C.   C.   A.   359,   and   cases 

107  111.  273;  McKinnon  v.  Hall,  10  cited. 

Colo.  Ct.  of  App.  291.  13— Stanton  v.   Embry,  93  U.  S. 

10 — Lynch  v.  Hutchinson,  ante,  548;    Gordon   v.   Gilfoil,   98   U.   S. 

38.  168. 


JURISDICTION  OF  PROBATE  COURTS.  19 

48.  In  Yonley  v.  Lavender, ^'^  it  is  held:  That  a  non- 
resident creditor  may  obtain  a  judgment  in  a  federal  court, 
against  a  resident  executor  or  administrator,  and  come  in  on 
the  estate  according  to  the  law  of  the  state  for  such  payment 
as  that  law,  marshalling  the  rights  of  creditors'  awards  to 
debtors  of  his  class. 

49.  In  Byers  v.  McAuley,^^  the  following  rule  is  laid 
down:  A  citizen  of  another  state  may  proceed  in  the  federal 
court  to  establish  a  debt  against  the  estate,  but  the  debt  thus 
established  must  take  its  place  and  share  in  the  estate  as 
administered  by  the  probate  court;  it  cannot  be  enforced  by 
direct  proceedings  against  the  estate  itself.  This  court  has  the 
right  and  it  is  its  duty  to  determine  the  character  and  extent 
of  the  complainant's  claim  against  the  estate,  and  the  class 
to  which  the  complainants  belong;  the  federal  court  does  not 
and  cannot  draw  to  itself  the  administration  of  the  estate. 

14—21  Wall.  276.  15—149  U.  S.  608. 


CHAPTER  III 


DESCENT  AND  DISTRIBUTION 


Sec. 

50.  Descent  and   distribution. 

51.  The  Statute  of  Descent  as  first 

passed. 

52.  Rules  of  descent. 

53.  Lineal     consanguinity,     lineal 

heirs. 

54.  Will  and  testament  may  modi- 

fy   and    completely    change 
course  of  descent. 

55.  The  early  statutes  of  descent. 

56.  Application  of  clauses  1,  3,  6, 

Sec.   1,  of  Descent  Act. 

57.  Application  of  Sec.  2  of  that 

act. 

58.  Illegitimates,  Sec.  2  of  Statute 

of   Descent. 

59.  Child   legitimated. 

60.  Robinson  v.  Ruprecht. 

61.  Lewis  V.  King. 

62.  Butler  v.  Butler. 

63.  Zachman  v.   Zachman. 


Sec. 

64.  Advancements. 

65.  Hotchpotch. 

66.  Advancements    must    be    evi- 

denced by  writing. 

67.  Posthumous  child. 

68.  Child    born   after   will,   effect. 

Marriage  effect. 

69.  Death  of  devisee  being  child, 

etc.,  before  testator. 

70.  Frail  v.  Carstalrs. 

71.  Distribution       of       undivided 

estates. 

72.  Sutton  V.  Read. 

73.  Where    there    is    a    surviving 

widow   or   husband    but   no 
issue. 

74.  Where  intestate  leaves  a  child 

or  children  or  their  descen- 
dants. 

75.  Miscellaneous. 


Sec.  50.  Descent  and  distribution.  When  an  individual 
dies,  his  or  her  real  and  personal  estate  "descends"  and  is 
"distributed"  as  provided  by  statute  law,  to  and  among  those 
persons  whom  that  law  designates  as  the  heirs  of  the  deceased. 
Strictly  speaking,  real  estate  only  "descends"  while  the  per- 
sonal estate  is  distributed.  In  this  work  we  omit  a  discussion 
of  the  common  law,  pertaining  to  the  administration  of  estates 
by  ecclesiastical  authorities,  to  whom,  under  the  early  com- 
mon law,  such  was  almost  entirely  entrusted.  The  very  able 
and  extensive  works  of  Blackstone  and  Kent  each  contain  a 
full  and  complete  history  of  such  courts  administering  estates. 
The  modem  text  book  writers,  treating  the  subject  of  estates 

20 


DESCENT  AND  DISTRIBUTION.  21 

and  their  administration,  give  but  little  space  and  time  in  dis- 
cussing the  history  and  administration  of  estates  by  ecclesias- 
tical courts.  These  courts  at  one  time  all  powerful  in  the 
administration  of  estates,  have  given  way  in  this  country  to  a 
better  and  more  equitable  modern  system,  to  be  found  in  the 
legislative  enactments  of  all  the  states  of  the  United  States. 
We  must  therefore  look  to  the  legislative  enactments  of  the 
several  states  comprising  the  Union,  to  ascertain  the  law  relat- 
ing to  the  administration,  settlement  and  distribution  of  es- 
tates. It  is  under  the  statute  laws  of  the  different  states,  the 
heirs  of  deceased  persons  are  entitled  to  the  personal  estate  of 
deceased  persons.  It  is  now  universally  held  that  the  distribu- 
tion of  estates  relating  to  personal  property  is  governed  by 
the  lex  domicilii — real  estate  descending  and  being  governed 
by  the  lex  rei  sitae.  The  doctrine  laid  down  by  Judge  Story  in 
his  workj  "Conflict  of  Laws,"  section  481,  has  long  been 
adopted  and  applied  by  the  courts  of  Illinois,  viz. :  ' '  That 
the  succession  to  personal  property  is  governed  by  the  laws 
of  the  actual  domicile  of  the  intestate  at  the  time  of  his  death, 
no  matter  what  was  the  country  of  his  birth  or  his  former 
domicile  or  the  actual  situs  of  the  property  at  the  time  of  his 
death.  "1  Real  estate  descending  or  devised  is  governed  by  the 
law  of  the  place  or  state  where  the  real  estate  is  situated.  So 
upon  the  death  of  the  householder,  the  homestead  estate  devolves 
upon  the  surviving  husband  or  wife  for  life  and  upon  the  chil- 
dren of  the  householder  during  the  minority  of  the  youngest 
child,  and  the  heirs-at-law  take  a  reversionary  interest  only,  ex- 
pectant upon  the  termination  of  the  estate  of  homestead.^ 

1— Russell  V.  Madden,  95  111.  485.  Vol.  5,  pp.  113  to  116,  and  cases 

2— Robertson  v.  Tipple,  209  111.  cited;    Kurd's  R.    S.    of  111.    1905, 

38.    Sees.  1,  2,  3,  5,  6,  14,  Chapt.  30,  same  sections  and  chapter,  pp.  463, 

"Conveyance"  Act,  Starr  &  Curtis  464,   466;   McConnell  v.  Smith,  23 

Annotated  Stat,  of  111.,  with  Jones  111.  617;   Murfitt  v.  Jessop,  94  111. 

&  Addington's  Supplements  there-  158;    Starr  &  Curtis  Stat.  Vol.   2, 

to.  Vol.  1,  pp.  910  to  918,  inclusive,  p.  1874;  Sec.  4,  Chapt.  52,  "Exemp- 

with  cases  cited,  making  applica-  tions;"  Robertson  v.  Tippie,  supra, 

tion  of  the  sections  noted.    Vol.  4,  40. 
pp.    252   to   255,   and    cases   cited. 


22  THE  LAW  OF  ESTATES. 

51.  The  statute  of  descent  was  first  passed  by  the  legisla- 
ture soon  after  Illinois  became  a  state,  the  act  being  approved 
March  29,  1819.  (Session  Laws  of  1819.)  The  first  act  re- 
mained in  force  until  January  23,  1829;  in  the  meantime,  the 
statute  was  construed  by  the  Supreme  Court,  which  adopted 
the  rule  of  the  civil  law  in  ascertaining  who  are  "next  of 
kin."  After  tliis  opinion,  the  legislature  in  1829  expressly 
adopted  the  civil  law  rule  of  computation,  and  that  rule  has 
ever  since  been  the  rule  of  this  state  for  ascertaining  the 
"next  of  kin. "3 

52.  Descent.  Section  1  of  chapter  39,  entitled  "Descent'* 
was  approved  April  9,  1872,  and  put  in  force  July  1,  1872; 
was  amended  May  25,  1877,  and  in  force  July  1,  1877;  that 
section  as  it  stands  today  is  as  follows : 

Rules  of  descent.  That  estates,  both  real  and  personal,  of 
residents  and  non-resident  proprietors  in  this  state  dying  in- 
testate, or  whose  estate  or  any  part  thereof  shall  be  deemed 
and  taken  as  intestate  estate,  after  all  just  debts  and  claims 
against  such  estates  are  fully  paid,  shall  descend  to  and  be 
distributed  in  manner  following,  to-wit: 

First — To  his  or  her  children  and  their  descendants,  in  equal 
parts;  the  descendants  of  the  deceased  child  or  grandchild 
taking  the  share  of  their  deceased  parents  in  equal  parts 
among  them. 

Second — When  there  is  no  child  of  the  intestate,  nor  de- 
scendant of  such  child,  and  no  widow  or  surviving  husband, 
then  to  the  parents,  brothers  and  sisters  of  the  deceased  and 
their  descendants,  in  equal  parts  among  them,  allowing  to 
each  of  the  parents,  if  living,  a  child's  part,  or  to  the  survivor 
of  them  if  one  be  dead,  a  double  portion;  and  if  there  is  no 

3— Laws  of  1829,  p.  206;  2,  Kent's  thereto.  Vol.  2,  pp.  1425,  1426,  and 
Com.,  339;  Hay's  Adm'r  v.  Thorn-  cases  cited  under  "General  Notes;" 
as,  1  111.  (Breese)  180;  Starr  &  Vol.  4,  p.  437,  and  cases  cited  un- 
Curtis  Annotated  Stat.  of.  111.,  with  der  "General  Notes;"  Vol.  5,  p. 
Jones  &  Addinston's  Supplements    176,    and    cases    under    "General 

Notes." 


DESCENT  AND  DISTRIBUTION.  23 

parent  living,  then  to  the  brothers  and  sisters  of  the  intestate, 
and  their  descendants. 

Third — When  there  is  a  widow  or  surviving  husband,  and 
no  child  or  children,  or  descendants  of  a  child  or  children  of 
the  intestate,  then  (after  the  payment  of  all  just  debts)  one- 
half  of  the  real  estate  and  the  whole  of  the  personal  estate 
shall  descend  to  such  widow  or  surviving  husband  ^s  an  abso- 
lute estate  forever,  and  the  other  half  of  the  real  estate  shall 
descend  as  in  other  cases,  where  there  is  no  child  or  children 
or  descendants  of  a  child  or  children. 

Fourth — When  there  is  a  widow  or  a  surviving  husband, 
and  also  a  child  or  children  or  descendants  of  such  child  or 
children  of  the  intestate,  the  widow  or  surviving  husband  shall 
receive,  as  his  or  her  absolute  personal  estate,  one-third  of  all 
the  personal  estate  of  the  intestate. 

Fifth — If  there  is  no  child  of  the  intestate  or  descendant  of 
such  child,  and  no  parent,  brother  or  sister  or  descendant  of 
such  parent,  brother  or  sister,  and  no  widow  or  surviving  hus- 
band, then  such  estate  shall  descend  in  equal  parts  to  the  next 
of  kin  to  the  intestate  in  equal  degrees  (computing  by  the 
rules  of  the  civil  law),  and  there  shall  be  no  representation 
among  collaterals,  except  with  the  descendants  of  brothers  and 
sisters  of  the  intestate;  and  in  no  case  shall  there  be  any 
distinction  between  the  kindred  of  the  whole  and  the  half 
blood. 

Sixth — If  any  intestate  leaves  a  widow  or  surviving  husband 
and  no  kindred,  his  or  her  estate  shall  descend  to  such  widow 
or  surviving  husband. 

Seventh — If  the  intestate  leaves  no  kindred,  and  no  widow 
or  husband,  his  or  her  estate  shall  escheat  to  and  vest  in  the 
county  in  which  said  real  or  personal  estate,  or  the  greater  por- 
tion thereof  is  situated.'* 

4 — Starr    &    Curtis'    Annotated  in  question  is  applied  and  its  dif- 

Statutes  of  Illinois,  with  Jones  &  ferent  clauses;  Vol.  4,  p.  437,  and 

Addington's    Supplements    thereto,  cases  cited;    Kurd's  R.   S.   of  111., 

Vol.  2,  pp.  1426  to  1429  inclusive,  1905,  same  section  and  chapter,  pp. 

and  cases  cited  where  the  section  763,  764,  and  cases  cited. 


24  THE  LAW  OF  ESTATES. 

53.  Lineal  consanguinity — lineal  heirs.  Lineal  consan- 
guinity is  that  relation  which  exists  among  persons  where  one 
is  descended  from  the  other,  as  between  the  son  and  a  father 
or  the  grandfather,  and  so  upward  in  the  ascending  line,  and 
between  the  father  and  the  son  or  the  grandson,  and  so  down- 
ward in  a  direct  descending  line.^ 

54.  Will  and  testament  may  modify  or  completely  change 
course  of  descent.  Prior  to  his  or  her  death,  the  owner  of  any 
real  or  personal  estate  may,  by  last  will  and  testament,  prop- 
erly executed,  modify  or  completely  change  the  course  of 
descent,  so  that  the  whole  or  a  part  of  his  or  her  estate  may 
become  the  property  of  total  strangers.  The  power  so  to  do 
may  be  enlarged  or  curtailed  by  the  legislature.  And,  while 
the  owner  of  real  and  personal  property  by  his  or  her  will  have 
that  right  and  power,  they  must  not  contravene  any  well  recog- 
nized and  admitted  principle  of  public  policy,  or  rule  of  clear 
right.^ 

55.  The  early  statute  of  descent  provided,  when  there  was 
a  surviving  widow,  and  no  child  or  children  or  descendants  of 
a  child  or  children,  the  widow  took  one-half  of  the  real  estate 
and  the  whole  of  the  personal  estate,  as  her  own  exclusive 
estate  forever.  But  while  the  widow  was  provided  for  in  case 
of  the  death  of  her  husband  intestate  under  the  early  statute, 
there  was  no  corresponding  provision  for  the  husband  in  ease 
of  the  death  of  his  wife  intestate,  leaving  no  child  or  children 
or  their  descendants.  The  husband  was  left  to  his  right  of 
curtsy  in  his  deceased  wife's  real  estate  as  it  stood  at  common 
law.     This  condition  of  the  law  remained  as  to  the  rights  of 

5 — Bouvier's     Law     Die,     title  of  111.,  with  Jones  &  Addington's 

"Consanguinity;"    Willis    Coal    &  Supplements   thereto.    Vol.    3,    pp. 

Mining  Co.  v.  Grizzell,  198  111.  317.  4022  to  4026  inclusive,  with  cases 

6 — Emmert  v.  Hayes,  89  111.  11;  cited  under  "Rights  and  power  of 

Freeman    v.    Easly,    117   111.   117;  disposition    of   property   by   Will," 

Clausennious  v.  Clausennious,  179  Vol.   4,   pp.    1283,   1284,   and   cases 

111.  545.    Sec.  1,  Chapt.  148  "Wills"  cited;    Hurd's   R.    S.   of   111.    1905, 

Starr  &  Curtis'  Annotated  Statutes  same  section  and  chapter,  p.  2050. 


DESCENT  AND  DISTRIBUTION.  25 

the  surviving  husband  in  such  case,  as  to  the  real  estate  of  his 
deceased  wife  until  1843,  v^hen  the  legislature  on  March  6  of 
that  year  provided,  that  when  any  feme  covert  shall  die  intes- 
tate, leaving  no  child  or  children,  or  descendants  of  a  child  or 
children,  then  one-half  of  the  real  estate  of  the  decedent  shall 
descend  and  go  to  the  husband  as  his  exclusive  estate  forever. 
Revised  Statutes,  1845,  546,  section  47,  embodying  the  laws 
of  1829  and  1843.  But  the  word  "dower"  used  in  the  act  of 
1843,  was  subsequently  explained,  as  including  one-third  of  the 
personal  property  in  intestate  estates.'^ 

Under  the  law  of  1872  and  prior  acts,  when  there  are  no 
children  or  descendants  thereof,  the  surviving  husband  or  wife, 
takes  one-half  of  the  real  estate  and  the  whole  of  the  personal 
estate  of  the  deceased  husband  or  wife  dying  intestate,  subject 
to  debts. 

56.  Application  of  Clauses  1,  3,  6,  section  1,  of  the  act  of 
"Descent"  will  be  found  in  numerous  cases.^  In  Christy  v. 
Marmo7i,^  it  is  held,  that  an  ante-nuptial  contract  which  bars 
widow's  dower,  does  not  defeat  her  inheritance  as  heir,  unless 
such  contract  expressly  so  provides.!^ 

57.  Application  of  section  2  of  the  act,  illegitimates  when 
heirs.  A  bastard  takes  nothing  by  descent,  except  as  provided 
by  statute.ii  In  the  latter  case  the  court  says:  The  statute  as  we 
understand  it  confers  upon  illegitimates  and  their  lawful  issue, 
as  respects  the  mother  and  any  maternal  ancestor,  and  any  per- 
son from  whom  the  mother  might  have  inherited,  if  living,  the 
right  to  inherit  from  such.  The  lawful  issue  of  an  illegitimate 
person  shall  represent  such,  and  take,  by  descent,  any  estate 
which  the  parent  would  have  taken  if  living.  There  is  nothing 
in  the  statute  that  will  allow  an  illegitimate  to  inherit  from  the 
father  of  such  person;  but  the  object  of  the  framers  of  the 

7— Statute  1845,  p.  545,  Sec.  46.  9—163  111.  225. 

8— Whitson  v.  Grasvner,  170  111.  10— See  Kroell  v.  Kroell,  219  111. 

276;  Scheible  v.  Rink,  195  111.  638;  105. 

Laurence    v.    Balch,    195    111.    628;  11— Stoltz    v.    Doering,    112    111. 

Lockwood  V.  Moffett,  177  111.  58.  234;  Bales  v.  Elder,  118  111.  436. 


26  THE  LAW  OF  ESTATES. 

statute  seems  to  have  been,  to  remove  the  common  law  disability 
of  inheritance  through  the  maternal  line,  and,  in  that  regard, 
place  such  persons  upon  the  same  footing  as  legitimate  persons. 
Two  classes  of  persons  are  provided  for  under  the  statute  of 
descent  in  sections  1  and  2 ;  where  there  are  no  persons  to  claim 
•under  section  2,  as  would  ordinarily  be  the  case  where  a  man 
dies  intestate,  leaving  no  children,  descendants  of  children,  or 
widow,  then  the  entire  estate  would  pass  and  be  distributed 
under  section  1;  but  in  case  there  were  persons  who  were 
heirs  under  section  2,  then  the  estate  would  descend  and 
have  to  be  distributed  under  both  sections.i^  In  Eundall  v. 
Ham,^^  it  is  said:  Clause  2  of  section  2  of  the  Stat- 
ute of  Descent  providing  that  the  estate,  real  and 
personal,  of  an  illegitimate  person  shall  descend  to  and 
vest  in  the  widow  or  surviving  husband  and  children, 
confers  no  right  whatever  upon  collaterals.  Children 
of  the  mother  of  an  illegitimate  can  claim  under  clause  4 
of  section  2  of  the  Statute  of  Descent  only  where  there  is  no 
widow  or  surviving  husband,  and  if  there  is  a  widow  it  is 
immaterial,  so  far  as  the  right  of  such  children  to  inherit  is 
concerned,  that  she  has  estopped  herself  from  asserting  her 
right,  as  sole  heir,  under  the  statute. 

58.  Illegitimates.  Section  2  of  the  Statute  of  Descent  is  as 
follows :  An  illegitimate  child  shall  be  heir  of  its  mother  and 
any  maternal  ancestor,  and  of  any  person  from  whom  its 
mother  might  have  inherited,  if  living;  and  the  lawful  issue 
of  an  illegitimate  person  shall  represent  such  person,  and  take, 
by  descent,  any  estate  which  the  parent  would  have  taken,  if 
living. 

Second — The  estate,  real  and  personal,  of  an  illegitimate  per- 
son, shall  descend  to  and  vest  in  the  widow  or  surviving  hus- 
band and  children,  as  the  estate  of  other  persons  in  like  cases. 

Third — In  case  of  the  death  of  an  illegitimate  intestate  leav- 

12— Jenkins  v.  Deane,  121  111.  Trust  Co.  v.  R.  Co.,  91  111.  App. 
217;   Elder  v.  Bales.  127  111.  425;     336;  Miller  v.  Williams,  66  111.  9L 

13—183  111.  486. 


DESCENT  AND  DISTRIBUTION.  27 

ing  no  child  or  descendant  of  a  child,  the  whole  estate,  per- 
sonal and  real,  shall  descend  to  and  absolutely  vest  in  the 
widow  or  surviving  husband. 

Fourth — When  there  is  no  widow  or  surviving  husband,  and 
no  child  or  descendants  of  a  child,  the  estate  of  such 
person  shall  descend  to  and  vest  in  the  mother  and  her  chil- 
dren, and  their  descendants — one-half  to  the  mother,  and  the 
other  half  to  be  equally  divided  between  her  children  and  their 
descendants,  the  descendants  of  a  child  taking  the  share  of 
their  deceased  parent  or  ancestor. 

Fifth — In  case  there  is  no  heir  as  above  provided,  the  estate 
of  such  person  shall  descend  to  and  vest  in  the  next  of  kin  to 
the  mother  of  such  intestate,  according  to  the  rule  of  the  civil 
law. 

Sixth — When  there  are  no  heirs  or  kindred,  the  estate  of 
such  person  shall  escheat  to  the  state,  and  not  otherwise.  Hurd 
Statutes. 

59.  Child  legitimated — intermarriage  of  parents.  Section  3 
of  the  Statute  of  Descent  is  as  follows :  An  illegitimate  child, 
whose  parents  have  intermarried,  and  whose  father  has  ac- 
knowledged him  or  her  as  his  child,  shall  be  considered  legiti- 
mate.i* 

60.  In  Robinson  v.  Buprecht,^^  it  is  said:  Section 
3  enables  parents  to  intermarry  where  they  may  legally  do 
so,  and  acknowledge  their  offspring  born  prior  to  the  legal  cele- 
bration of  their  union;  we  do  not  see  the  force  of  the  reason- 
ing, that  would  restrict  the  meaning  of  the  section,  so  as  to 
exclude  from  its  operation-  parents,  one  or  the  other  of  whom 
has  violated  his  or  her  marriage  obligations  in  the  procreation 
of  the  child.  The  child  of  such  parents  is  not  less  innocent 
or  unoffending  than  the  child  of  parents  who  were  married  at 
the  time  of  the  copulation;  and  the  ground  upon  which  the 
insistence  is  based,  ''that  the  child  should  be  punished  for  the 
sins  of  the  parents,"  shocks  every  sense  of  justice  and  right. 

14— R.  S.  1845,  p.  547,  Sec.  52.  15—191  111.  424. 


28  THE  LAW  OP  ESTATES. 

The  degree  of  moral  or  criminal  delinquency  of  the  parents 
does  not  enter  into  consideration  in  construing  the  statute. 
The  court  in  that  case  holding,  that  a  common  law  marriage 
is  established  in  this  state,  where  at  the  time  of  the  celebration 
of  the  supposed  marriage,  the  man  knew  that  he  had  a  legal 
wife  living,  and  the  woman  had  a  husband  living  whom  she  in 
good  faith  supposed  to  be  dead;  the  parties  continuing  to 
cohabit  as  husband  and  wife,  and  publicly  conducting  and 
announcing  themselves  as  such,  acknowledging  their  offspring 
as  their  children,  after  receiving  knowledge  that  the  man's 
legal  wife  was  dead  and  after  the  woman's  legal  husband  had 
died;  in  which  case  the  children  are  rendered  legitimate,  for 
it  was  not  the  legislative  intent  to  exclude  from  the  benefits 
of  sections  2  and  3  any  illegitimate  person  legitimized. 

61.  In  Lewis  v.  King,^^  the  deceased,  who  died  seized  of 
certain  lands  in  controversy,  was  a  negro,  who,  for  a  num- 
ber of  years  immediately  prior  to  the  late  civil  war,  was  a 
slave.  His  marriage  was  consummated  under  the  statute  of 
Kentucky  relating  to  the  marriage  of  negroes  and  mulattoes, 
by  persons  living  in  that  state  as  husband  and  wife  while 
in  slavery,  which  legitimized  previously  born  issue.  He  lived 
for  many  years  before  and  after  the  war,  at  a  point  known  as 
Hillman's  Iron  Works  located  on  the  Cumberland  river  in 
Trigg  county,  Kentucky.  It  was  held  that  under  the  Kentucky 
statutes  his  marriage  was  made  lawful ;  that  the  children  born 
to  him  as  the  issue  of  such  marriage  were  the  legitimate  chil- 
dren of  the  marriage  of  the  deceased  to  one  Betsy  Baker.  As 
a  marriage  between  persons  in  a  state  of  slavery  is  rendered 
valid  by  their  ratification  of  the  same  after  emancipation,  and 
children  born  thereafter  are  legitimate,  the  title  to  the  land 
in  question,  upon  the  death  of  Edward  Baker,  passed  to  his 
surviving  daughter,  and  to  the  children  of  his  deceased  daugh- 
ter. 

62.  In  Butler  v.  Butler,^''  the  court  holds:  that  a  marriage 
16—180  111.  263.  17—161  111.  451. 


DESCENT  AND  DISTRIBUTION.  29 

between  persons  in  a  state  of  slavery  is  not  binding  upon  the 
parties  to  it,  if  repudiated  upon  emancipation;  and  that  ratifi- 
cation of  a  marriage  between  slaves  by  cohabitation  of  the  par- 
ties after  emancipation  renders  such  marriage  valid,  and  this 
doctrine  is  affirmed  again  in  Middleton  v.  Middleton}^ 

63.  In  Zachman  v.  Zachman,^^  the  court  held:  A 
minor  child  reared  in  the  family  of  a  lawfully  married  hus- 
band and  wife,  who  are  living  together  as  husband  and  wife, 
and  is  treated  and  recognized  as  their  lawful  offspring,  is 
prima  facie  to  be  regarded  as  the  child  of  the  husband,  and 
the  burden  of  disproving  such  parentage  is  cast  upon  those  de- 
nying it;  and  this  notwithstanding,  the  parents  had  been  mar- 
ried but  fifteen  days  at  the  time  of  the  birth  of  such  child; 
and  notwithstanding  further,  that  at  the  time  of  its  concep- 
tion its  mother  was  the  lawful  wife  of  another  man,  from 
whom  she  was  divorced  only  twenty  days  before  such  mar- 
riage. 

64.  Advancements.  Section  4  of  the  Statute  of  "Descent" 
is  as  follows:  ''Any  real  or  personal  estate  given  by  an  in- 
testate in  his  life-time  as  an  advancement  to  any  child  or 
lineal  descendant,  shall  be  considered  as  part  of  the  intestate's 
estate,  so  far  as  it  regards  the  divisions  and  distributions 
thereof  among  his  issue,  and  shall  be  taken  by  such  child  or 
other  descendant  towards  his  share  of  the  intestate's  estate; 
but  he  shall  not  be  required  to  refund  any  part  thereof,  al- 
though it  exceeds  his  share." 

In  the  following  case  it  is  held  that  advancements  are  not 
required  to  be  returned  in  kind;  but  the  value  of  such  after 
being  estimated  is  deducted  from  the  child's  share  who  re- 
ceived such  benefit ;  and  such  heir  may  elect  to  retain  the  prop- 
erty advanced  and  relinquish  claim  to  share  in  distribution; 
but  infants  have  not  capacity  to  elect  in  such  case,  therefore 
equity     will     direct     election     in     their     interest.^*^       It     is 

18—221  111.  623.  20— Grattan   v.    Grattan,    18    111. 

19—201  111.  38S.  167. 


30  THE  LAW  OP  ESTATES. 

held  where  a  conveyance  of  land  by  a  father  to  a  son,  was 
made  in  consideration  of  a  son's  relinquishing,  is  no  advance- 
ment; the  case  turning  on  the  fact  that  the  son  was  a  minor 
and  that  any  receipt  given  indicating  the  deed  was  made  as 
an  advancement  was  not  binding  as  the  minor  and  those  act- 
ing for  him  could  not  make  a  valid  and  binding  agree- 
ment. 21  In  Galhraith  v.  McLain,"^^  it  is  held,  the  purchase 
of  land  by  a  parent  in  name  of  child,  or  by  husband  in  name 
of  wife  is  presumed  'prima  facie  to  be  an  advancement,  not  a 
trust;  but  the  intention  of  the  one  making  the  advancement 
may  be  established  by  evidence  in  such  case ;  and  to  the  same 
effect.23  In  the  following  cases  it  is  held,  an  advancement 
is  a  gift  from  parent  to  child  or  heir ;  and  if  the  child  or  heir, 
to  whom  the  gift  or  advancement  was  made,  dies  in  the  life- 
time of  the  parent  making  the  gift  or  advancement,  the  chil- 
dren of  the  son  or  heir  who  had  received  the  gift,  were  barred 
from  any  share  in  their  grandfather's  estate,  of  course  to  the 
extent  of  the  advancement,  if  it  appears  that  the  advancement 
made  was  not  in  full  of  the  heir's  share  of  the  deceased  parent's 
estate.24 

65.  Hotchpotch.  Under  the  statute  of  Descent  of  this 
State  passed  in  1845,  provision  was  made  for  bringing  real  or 
personal  estate  into  hotchpotch;  a  common  law  doctrine  or 
principle  applied  in  the  State  up  to  the  time  of  passing  the. 
statute  of  1872,  we  now  have  in  force.  The  term  is  defined 
by  Webster  as  "a  mingled  mass";  a  ''mixture  of  ingredients." 
In  Law  Blackstone  defines  the  term,  a  mixing  of  lands.  Thus 
land  given  in  frank  marriage  to  one  daughter,  shall,  after  the 
death  of  the  ancestor,  be  blended  with  the  lands  descending 
to  her  and  to  her  sisters  from  the  same  ancestor,  and  then 
divided  in  equal  portions  to  all  the  daughters.      In    Bishop 

21 — Bishop  V.  Davenport,  58  111.  24 — Simpson  v.  Simpson,  114  111. 

105.  603;    Wallace  v.  Reddick,   119   111. 

22—81  111.  376.  151;  Comer  v.  Comer,  119  111.  170; 

23— Maxwell  v.  Maxwell,  109  111.  Scott  v.  Scott,  191  111.  630. 
376;  Cline  v.  Jones,  111  111.  563. 


DESCENT  AND  DISTRIBUTION.  31 

V.  Davenport,^^  the  doctrine  was  applied,  the  court  hold- 
ing: the  statute  of  1845,  made  provision  for  bringing  real  or 
personal  estates  into  hotchpotch,  and  gave  the  party  advanced, 
if  of  age,  the  right  to  elect  whether  he  would  do  so  or  not; 
if  he  refused  to  bring  his  advancement  into  hotchpotch,  he 
was  precluded  from  any  share  in  the  intestate's  estate,  on  the 
presumption  that  he  is  sufficiently  provided  for  or  he  would 
not  refuse  so  to  do. 

66.  Advancements  must  be  evidenced  by  writing.  This  is 
required,  in  all  cases  under  section  7  of  the  act  of  "Descent." 
In  the  following  cases  the  statute  is  applied.  It  being  held, 
however  clearly  it  may  appear  it  was  so  intended,  if  not  ex- 
pressed in  writing  will  be  no  advancement.^^  And  as  in  many 
cases  where  the  testator  in  his  will  stated,  that  on  former  occa- 
sions, he  gave  various  pieces  of  property  to  his  children,  it  was 
held,  not  an  expression  of  a  gift  by  way  of  advancement. ^^ 

67.  Posthumous  child.  Section  9  of  the  statute  of  "De- 
scent" is  as  follows:  "A  posthumous  child  of  an  intestate 
shall  receive  its  just  proportion  of  its  ancestor's  estate,  in  all 
respects  as  if  it  had  been  born  in  the  life-time  of  the  father." 
Such  child  takes  directly  from  parent  as  though  in  being  at 
parent's  death.  The  section  also  applies  to  land  in  the  State 
of  Illinois,  although  a  will  is  probated  out  of  the  State. ^^ 
The  courts  of  this  State  have  placed  the  rights  of  such 
children  upon  precisely  the  same  footing  with  the  rights  of 
children  born  in  the  life-time  of  the  intestate.  They  cannot  be 
divested  of  title  unless  made  a  party  to  proceedings  at  law  or 

25—58  111.  105.  1431,  1432;   Vol.  4,  p.  438;   Vol.  5, 

26 — Cline     v.     Jones,     111     111.  p.  176,  and  cases  cited. 

571;   Simpson  v.  Simpson,  114  111.  27 — Wilkinson    v.    Thomas,    128 

605;    Long  v.   Long,   118   111.   638;  111.   363;    Bartmess  v.   Fuller,   170 

Wilkinson  v.  Thomas,  128  111.  368;  111.  197;   Gray  v.  Newton,  201  111. 

Kershaw  v.  Kershaw,  102  111.  307;  181;  May  v.  May,  36  111.  App.  77; 

Marshall  v.  Coleman,  187  111.  556;  Haines  v.  Christie,  28  Colo.  502. 

Starr  &  Curtis  Annotated  Statutes  28— McConnell  v.   Smith,  23  111. 

of  111.,  with  Jones  &  Addington's  611 ;  Kingsbury  v.  Burnside,  58  111. 

Supplements  thereto.     Vol.  2,  pp.  310. 


32  THE  LAW  OF  ESTATES. 

equity.23  The  form  of  action  whether  in  chancery,  at  law  or 
under  the  statute,  does  not  make  or  change  the  rights  of  such 
posthumous  child.30 

68.  Child  born  after  will — Effect  of  marriage.  Section  10 
of  the  Statute  of  "Descent"  is  as  follows:  "If,  after  making 
a  last  will  and  testament,  a  child  shall  be  born  to  any  testator, 
and  no  provision  be  made  in  such  will  for  such  child,  the  will 
shall  not  on  that  account  be  revoked ;  but  unless  it  shall  ap- 
pear by  such  will  that  it  was  the  intention  of  the  testator  to  dis- 
inherit such  child,  the  devises  and  legacies  by  such  will  granted 
and  given,  shall  be  abated  in  equal  proportions  to  raise  a  por- 
tion for  such  child  equal  to  that  which  such  child  would  have 
been  entitled  to  receive  out  of  the  estate  of  such  testator  if 
he  had  died  intestate,  and  a  marriage  shall  be  deemed  a  revo- 
cation of  a  prior  will."  Devises  and  legacies  are  to  be  reduced 
under  this  section  pro  rata  to  raise  same  portion  as  if  parent 
had  died  intestate.^i  In  Osbwn  v.  Jefferson  National  Bank^^  it 
was  held :  A  mother  may  provide  for  such  posthumous  child  or 
children  in  case  they  should  survive  her;  and  should  she  make 
a  will  with  proper  provision  for  such  child,  it  does  not  abate 
under  the  statute.  In  Flannigan  v.  Howard,^^  it  is  held: 
That  the  act  of  1867,  providing  for  the  adoption  of  children 
was  in  force,  at  the  time  the  act  of  July  1,  1872,  of  the  statute 
in  regard  to  the  descent  of  property  took  effect,  that  after- 
wards the  act  in  relation  to  the  adoption  of  children  was  re- 
vised by  the  act  in  force  July  1,  1874,  constituting  Chapter  4, 
of  the  Revised  Statutes ;  section  5  of  that  act  being  as  follows : 
"A  child  so  adopted  shall  be  deemed,  for  the  purpose  of  in- 
heritance by  such  child,  and  his  descendants  and  husband  or 

29— Smith    v.    Connell,    17    111.  of  Illinois,  with  Jones  &  Adding- 

135;   Botsford  v.  O'Connor,  57  111.  ton's  Supplements  thereto.    Vol.  2, 

72;    Ward   v.   Ward,    120   111.    Ill;  p.  1432,  and  cases  cited. 

Osborn  v.  Jefferson  Nat'l  Bk..  118  31— Ward  v.  Ward,  120  111.  112; 

111.    130;    Kingsbury    v.    Buettner,  Bank  v.  White,  159  111.  140;  Hun- 

134  U.  S.  650.  dall  v.  Ham,  172  111.  82. 

30— Ward  v.  Ward,  120  111.  Ill;  32—116  111.  130. 

Starr  &  Curtis  Annotated  Statutes  33—200  111.  400. 


DESCENT  AND  DISTRIBUTION.  33 

wife,  and  other  legal  consequences  and  incidents  of  the  nat- 
ural relation  of  parents  and  children,  the  child  of  the  parents 
by  adoption,  the  same  as  if  he  had  been  born  to  them  in  lawful 
wedlock,  except  that  he  shall  not  be  capable  of  taking  prop- 
erty expressly  limited  to  the  body  or  bodies  of  the  parents  by 
adoption,  nor  property  from  the  lineal  or  collateral  kindred 
of  such  parents  by  right  of  representation."  By  accepted 
definitions  a  child  is  the  immediate  progeny  of  human  pa- 
rents, and  in  its  natural  meaning  the  word  a,pplies  to  offspring 
born  to  such  parents.  By  the  statute,  however,  the  relation 
of  parent  and  child  is  recognized  and  declared  as  legally  ex- 
isting between  persons  not  so  related  by  nature.  The  Statute 
of  Descent  does  not,  in  any  case,  mention  this  legal  relation  of 
an  adopted  child  and  the  adopting  parent,  but  the  right  of 
the  adopted  child  is  fixed  by  the  act  providing  for  adoption, 
which  creates,  in  law,  the  relation  of  parent  and  child.  The 
purpose  of  section  10  of  the  act  in  regard  to  descent  is  to  give 
to  a  child  who  shall  come  into  existence  after  the  making  of 
a  will,  and  who  would  inherit  but  for  the  will,  the  same  rights 
it  would  have  if  the  estate  were  intestate,  where  no  provision 
is  made  in  the  will  for  such  child  and  no  contrary  intention  is 
expressed  in  the  will.  An  adopted  child  becomes  the  lawful 
child  of  the  adopting  parents  for  all  purposes  of  inheritance, 
and  is  in  the  eyes  of  the  law  as  much  the  child  of  such  parent 
as  though  it  had  been  his  own  child.^* 

69.  Death  of  devisee  being  child,  etc.,  before  testator.  Sec- 
tion 11  of  the  Statute  of  "Descent"  is  as  follows:  ''When- 
ever a  devisee  or  legatee  in  any  last  will  and  testament,  being 
a  child  or  grandchild  of  the  testator,  shall  die  before  such 
testator,  and  no  provision  shall  be  made  for  such  contingency, 
the  issue,  if  any  there  be,  of  such  devisee  or  legatee,  shall  take 
the  estate  devised  or  bequeathed  as  the  devisee  or  legatee 

34— Keegan  v.  Geraghty,  101  111.  of  111.,  with  Jones  &  Adding- 
26;  Sayles  v.  Christie,  187  111.  420;  ton's  Supplements  thereto.  Vol.  2, 
Starr  &  Curtis  Annotated  Statutes    p.  1433;   Vol.  4,  p.  438;  Vol.  5,  p. 

177,  and  cases  cited. 
3 


34  THE  LAW  OF  ESTATES. 

would  have  done  had  he  survived  the  testator,  and  if  there 
be  no  such  issue  at  the  time  of  the  death  of  such  testator,  the 
estate  disposed  of  by  such  devise  or  legacy  shall  be  considered 
and  treated  in  all  respects  as  intestate  estate.  "^^ 

70.  In  Frail  v.  Carstairs,^^  applying  and  construing 
this  section  of  the  statute,  it  is  held:  Whenever  a  dev- 
isee, being  a  child  or  grandchild  of  the  testator,  dies  without 
issue,  before  the  testator,  and  the  will  makes  no  provision  for 
Buch  contingency,  the  estate  so  devised  is  to  be  treated  as  in- 
testate property,  and  would  under  statute  go  to  heirs  of  such 
child  or  grandchild.    See  also  cases  cited  in  that  opinion. 

71.  Distribution  of  undivided  estate.  Section  12  of  the 
Statute  of  "Descent"  is  as  follows:  **A11  such  estate,  both 
real  and  personal,  as  is  not  devised  or  bequeathed  in  the  last 
will  and  testament  of  any  person,  shall  be  distributed  in  the 
same  manner  as  the  estate  of  an  intestate ;  but  in  all  such  cases 
the  executor  or  executors,  administrator  or  administrators, 
with  the  will  annexed,  shall  have  the  preference  in  administer- 
ing on  the  same.  "37 

72.  In  Sutton  v.  Read,^^  the  record  shows,  the  will 
in  question  nowhere  attempted  to  dispose  of  the  fee  in 
the  realty;  it  was  not  devised  to  any  one.  The  court  holding, 
in  such  case  the  provisions  of  section  12  of  the  Statutes  of  De- 
scent must  control  and  which  provides  that  all  such  estate, 
both  real  and  personal,  as  is  not  devised  or  bequeathed  in  the 
last  will  and  testament  of  any  person,  shall  be  distributed  in 
the  same  manner  as  the  estate  of  an  intestate.  In  Benson  v. 
Moore,^^  the  deceased  left  a  mother  and  a  surviving  husband, 
but  no  issue;  the  mother  and  husband  each  inherited  one  half 
of  the  real  estate. 

73.  Where  there  is  a  surviving  widow  or  husbajid  but  no 
issue.     Prior  to  the  act  of  the  Legislature  of  this  State  passed 

35— R.  S.  1845,  p.  539,  Sec.  14.  38—176  111.  69. 

36—187  111.  310.  39—104  111.  408.     See  Marvin  v. 

37— R.  S.  1845,  p.  545,  Sec.  42.  Collins,  98  111.  517. 


DESCENT  AND  DISTRIBUTION.  35 

in  1829,  what  was  termed  or  called  "the  widow's  third"  of  the 
personal  property,  in  all  cases  went  to  the  surviving  widow; 
by  that  act  where  there  was  no  child  or  children  or  descend- 
ants of  a  child  or  children,  the  widow  received  one  half  of  the 
real  estate  and  the  whole  of  the  personal  estate  absolutely; 
subject  of  course  to  the  payment  of  all  just  debts  and  cost  of 
administration.  The  surviving  husband,  where  there  was  no 
child  or  children  or  their  descendants,  prior  to  the  act  of  the 
Legislature  passed  in  1843,  as  to  the  real  estate  of  his  intestate 
wife  had  nothing  but  his  estate  of  curtsy  a  right  recognized 
and  growing  out  of  the  common  law.  Under  the  act  of  1843 
(Statutes  of  1845,  p.  546,  Sec.  47),  the  surviving  husband,  in 
case  there  was  no  child  or  children  or  their  descendants,  was 
given  one  half  of  the  real  estate  of  his  wife  in  fee  so  dying  in- 
testate, without  issue.  Later  in  1872,  the  Statute  of  Descent 
was  revised  and  passed  (Chapter  entitled  "Descent,"  Sec.  1, 
Clause  3),  under  which  the  husband  was  given  the  whole  of 
the  personal  estate  absolutely,  burdened  with  just  debts  and 
cost  of  administration,  in  case  the  wife  died  intestate  and  left 
no  child  or  children  or  their  descendants.  This  act  was  fol- 
lowed by  an  act  relating  to  married  women's  rights  revised 
and  passed  by  the  Legislature  in  1874.  (Statutes  1874,  Chapter 
68,  entitled  "Husband  and  Wife.")4o  And,  as  the  result  of  this 
act  and  the  act  relating  to  descent,  the  husband  in  case  of  the 
wife 's  death  intestate  as  aforesaid,  leaving  no  issue,  was  placed 
in  precisely  the  same  relation  under  the  law  as  the  surviving 
widow  formerly  held ;  at  the  present  time,  therefore,  the  inter- 
est of  the  widow  or  surviving  husband  is  that  of  an  heir,  under 
the  statutes  of  this  State,  in  the  estate  of  the  deceased  husband 
or  wife  dying  intestate,  in  both  the  real  and  personal  property 
in  the  absence  of  issue  or  their  descendants;  the  other  half  of 
the  real  estate  descending  as  provided  by  the  Statutes  of  De- 

40— Starr  &  Curtis  Annotated  2,  pp.  2117  to  2136  inclusive;  Vol, 
Statutes  of  111.,  with  Jones  &  Ad-  4,  pp.  673  to  675  inclusive;  Vol.  5, 
dington's  Supplements  thereto.  Vol.    pp.  286,  287. 


36  THE  LAW  OF  ESTATES. 

scent  to  the  next  of  kin  of  either  the  paternal  or  maternal  line 
of  consanguinity. 

74.  Where  intestate  leaves  a  child  or  children  or  their  de- 
scendants. Under  the  early  statutes  of  this  state,  when  the 
husband  died  intestate,  and  left  a  surviving-  widow  and  also  a 
child  or  children  or  descendants  of  such  child  or  children,  the 
widow  received  as  her  absolute  estate,  one  third  of  the  per- 
sonal estate  after  the  payment  of  just  debts  and  cost  of  admin- 
istration. If  the  wife  died  intestate,  and  left  a  surviving  hus- 
band and  also  a  child  or  children  or  their  descendants,  the 
child  or  children  or  their  descendants  succeeded  to  the  per- 
sonal estate,  after  payment  of  just  debts  and  cost  of  admin- 
istration. But  as  the  result  of  various  acts  of  the  Legislature 
relating  to  the  rights  of  married  women  and  their  dominion, 
control  and  ownership  of  their  separate  property  resulting  in 
the  revision  of  all  such  laws,  the  act  of  1872,  relating  to  "De- 
scent" and  the  act  of  1874,  relating  to  "husband  and  wife," 
and  their  separate  properties,  noted  and  referred  to  in  the 
preceding  section,  one  third  of  the  intestate  wife's  personal 
estate  was  by  statute  given  to  the  husband;  so,  that  since  the 
acts  in  question  and  now,  both  husband  and  wife  in  this  re- 
spect stand  equal  before  the  law.  The  real  estate  under  the 
early  statutes  descended  to  such  child  or  children  or  their  de- 
scendants, burdened  with  or  subject  to  the  surviving  widow's, 
or  the  surviving  husband's  estate  of  curtsy  under  the  common 
law.  On  March  4,  1874,  a  change  was  made  in  the  status  of  the 
surviving  husband,  on  that  date  the  Dower  Act  was  revised 
and  passed  by  the  Legislature ;  and,  under  that  act  going  into 
force  July  1,  1874,  the  estate  of  curtsy  theretofore  recognized 
in  the  surviving  husband  was  abolished;  both  the  surviving 
husband  and  wife  being  endowed  by  that  statute  with  a  one 
third  part  of  "all  the  lands  whereof  the  deceased  husband  or 
wife  was  seized  of  an  estate  of  inheritance,  at  any  time  during 
the  marriage,  unless  the  same  shall  have  been  relinquished  in 
legal  form,"  etc.*^     The  third  of  the  personal  estate  is  a  portion 

41 — Chapt.  41,  Sec.  1.     "Dower." 


DESCENT  AND  DISTRIBUTION.  37 

of  the  husband's  or  wife's  dower,  subject  to  be  exhausted  by 
claims  or  debts  allowed  against  the  respective  estates  and  the 
cost  of  the  administration  thereof.  Under  the  statutes  of  1872 
and  1874,  both  the  husband  and  wife  are  endowered ;  and,  where 
there  is  no  child  or  children  or  descendants  thereof,  the  surviv- 
ing husband  or  wife  dying  intestate  take  as  heirs^'^ 

75.  Miscellaneous.  Under  Section  1,  of  the  Statutes  of  De- 
scent, it  is  generally  held,  "children"  mean  legitimate  chil- 
dren. Blacklaws  v.  MilneJ^  Provision  for  widows  is 
strictly  confined  to  eases  of  intestacy.  Sturges  v.  Eiving.^*^ 
Proof  that  certain  persons  are  the  only  children  who 
survived  their  father  does  not  establish  the  fact  that  they 
are  his  only  heirs.  It  may  be  that  the  ancestor  had  other  chil- 
dren who  died  before  he  did,  leaving  issue  who  survived  their 
grandfather.  It  should  be  shown  whether  he  left  such  grand- 
children, and  leave  the  law  to  decide  who  are  the  heirs.  Suc- 
cession to  personal  property  is  governed  by  law  of  intestate's 
domicile  at  the  time  of  his  death,  no  matter  what  was  the  coun- 
try of  his  birth  or  his  former  domicile  or  situs  of  property  at 
the  time  of  his  death.  Russell  v.  Madden^^  Color  of  title 
owned  by  intestate  descends  to  his  heirs  at  law.  Holhrook  v. 
Forsyth^^  When  devise  is  made  to  class  of  persons  named 
"heirs  at  law"  property  will  be  divided  among  heirs  as  in  case 
of  intestacy.  Kelly  v.  Vigas^''  Land  in  Illinois  descends 
according  to  law  of  Illinois.  Stoltz  v.  Doering*^  Where  legacy 
lapses  there  being  no  residuary  bequest,  it  will  go  to  the  next  of 
kin  as  property  undisposed  of  by  will.  Mills  v.  NewberryJ^ 
Where  two  persons  hold  as  joint  tenants  with  the  right  of  sur- 

42 — Gauch    v.    St,    Louis    M.    L.  43 — 82  111.  505. 

Ins.  Co.,  88  111.  251;  Starr  &  Curtis  44—18  111.  176. 

Annotated     Statutes     of     Illinois,  45 — 95  111.  485;  Wilkins  v.  Ellet, 

with  Jones  &  Addington's  Supple-  108  U.  S.  256. 

ments  thereto.     Vol.  2,  pp.  1456  to  46—112  111.  306. 

1462  inclusive;  Vol.  4,  p.  446;  Vol.  47—112  111.  242. 

5,  p.  180,  and  cases  cited;   Kurd's  48—112  111.  234. 

R.    S.   of   111.,    1905,   same   section  49—112  111.  123. 
and  chapter,  p.  768. 


38  THE  LAW  OF  ESTATES. 

vivorship,  upon  the  death  of  one,  the  whole  interest  passes  to 
the  survivor.  But  the  right  does  not  extend  to  growing  crops, 
nor  to  crops  already  harvested.  Pritchard  v.  Walker.^^  Under 
provision  in  life  insurance,  making  insurance  payable  "to  my 
heirs  at  law,"  the  widow  will  take  as  heir.^^  The  common  law 
rule  of  inheritance  no  longer  exists  in  Illinois,  the  statutes  con- 
trol.^- But  the  Legislature  may  change  at  will  laws  of  de- 
scent.^2  Where  two  or  more  persons  lose  their  lives  in  a  com- 
mon disaster,  there  is  no  presumption  under  the  common  law 
of  a  survivorship ;  such  must  be  proved  by  one  having  the  bur- 
den of  proof  of  survivorship.^'*  The  right  to  inherit  does  not 
exist  in  favor  of  one  who  has  neither  been  born  of  the  body  of 
the  deceased,  nor  legally  adopted  by  him.^^  Lineal  consanguin- 
ity, is  that  relation  which  exists  among  persons,  where  one  is 
descended  from  the  other,  etc.^* 

As  a  general  rule,  whenever  an  estate  is  not  wholly  testate 
and  cannot  be  entirely  administered,  settled  and  distributed 
under  the  terms  of  a  will,  the  statute  of  descent  at  once  ap- 
plies. This  statute  in  whole  or  in  part  with  the  aid  of  the 
courts,  distributes  the  personal  property  and  vests  the  real  es- 
tate of  deceased  person  as  the  statute  law  of  the  different 
states  of  the  Union  may  direct.  The  statute  of  descent  was 
passed  to  meet  every  condition  that  might  arise  whenever  any 
contest  by  interested  parties  results  in  legally  setting  aside  the 
will  and  testament  of  a  deceased  person.  This  statute  also  ap- 
plies when  the  courts  under  well  settled  rules  for  the  interpre- 
tation and  construction  of  wills,  find  a  deceased  person  in 
whole  or  in  part  has  undertaken  by  testamentary  bequest  to 
dispose  of  his  or  her  property  in  a  manner  forbidden  by  law; 
or  for  some  manifest  legal  cause  a  deceased  person  has  entirely 

50—22  111.  App.  286.  54— Middeke  v.    Balder,   198   111. 

51 — Alexander    v.    Masonic    Aid  594. 

Assn.,  126  111.  558;  Lawwill  v.  Law-  55— Crumley  v.  Worden,  201  111. 

will,  29  111.  App.  643.  117. 

52 — Kochersperger  v.  Drake,  167  56 — Willis    Coal    Mining   Co.    v. 

111.  125.  Grizzell,  198  111.  317. 

53— Sayles   v.   Christie,    187   111. 
432. 


DESCENT    AND    DISTRIBUTION.  39 

failed  to  make  a  bequest,  grant  or  devise,  intelligent  enough 
to  pass  property  under  a  will.  The  statute  may  be  applied 
where  an  estate  is  wholly  testate  or  in  part  so.  Thus,  estates 
of  all  persons  under  disability,  the  insane,  the  habitual  drunk- 
ard, the  illegitimate  child,  the  adopted  child  where  the  adoption 
is  legally  questioned,  the  minor,  etc.  The  law  is  well  settled 
in  this  country,  that  any  state  of  the  Union,  has  the  undoubted 
right  to  regulate  the  disposition  of  the  property  of  its  citizens 
by  descent,  devise  or  alienation.  The  question,  therefore, 
arises  under  the  "Torrena  Land  Act,"  as  to  the  descent  of 
lands  on  the  death  of  a  registered  owner,  which  may  involve 
the  validity  of  certain  sections  of  that  act  which  may  at  any 
time  come  before  the  courts  for  construction  and  considera- 
tion (post  380).  Also  the  statute  of  uses  (post  303  to  306). 
The  statute  relating  to  distribution  in  kind  by  order  of  court 
(post  532).  Distribution  of  the  overplus  from  the  sale  of 
lands  (post  561,  564).  Property  acquired  after  will  made  (post 
645).  The  rights  of  surviving  husband  or  wife  as  heir  of 
either  (post  636).  Renunciation  of  the  terms  of  a  will  by  the 
surviving  husband  or  wife  and  the  election  of  such  to  take  a 
legal  and  equitable  estate  in  lieu  thereof  under  the  law  (post 
638).  The  homestead  estate  of  either  husband  or  wife  (post 
623).  Also  where  an  estate  reverts  on  failure  of  issue  to  heirs 
of  devisor  (post  191).  Where  failure  of  the  object  prevents 
conversion  taking  place  (post  310).  Where  specific  articles 
bequeathed,  are  sold,  lost  or  destroyed  and  replaced  by  other 
articles  which  do  not  pass  under  will,  because  no  provision  in 
the  will  is  made  for  such  contingency  (post  168).  Where  it  is 
held  fraud  vitiates  a  will  (post  113,  117,  276).  Where  repug- 
nant clauses  are  held  to  destroy  the  will  (post  179  to  181,  190, 
191).  Where  gifts  causa  mortis  are  held  illegal  (post  337  to 
340),  Where  gifts  inter  vivos  are  held  to  be  illegal  (post  342). 
Where  the  rule  in  Shelly 's  case  is  applied  to  a  devise  in  a  will 
(post  189  to  192).  Where  the  statutes  relating  to  perpetuities 
and  per  capita  and  per  stirpes  are  applied  and  called  in  ques- 
tion in  the  interpretation  of  wills  (post  249,  205,  309).    Where 


40  THE  LAW  OF  ESTATES. 

the  question  of  who  survives  in  a  common  disaster  determines 
to  whom  the  particular  estate  shall  go  {post  834,  et  seq). 
Generally,  therefore,  the  matters  cited  and  many  others  grow- 
ing out  of  the  contest  and  construction  of  wills  have  more  or 
less  relation  to  the  statute  of  descent  and  distribution.  We 
therefore  conclude  this  chapter,  because  the  Statute  of 
"Descent"  always  steps  in  and  takes  the  place  of  a  will  not 
leg'ally  established  by  law.  It  will  also  apply  where  an  estate 
is  partly  testate  and  partly  intestate,  as  where  the  will  of  a 
father  devises  to  his  son  John  a  legacy  of  $5,000,  and  does  not 
provide  for  the  contingency  in  the  will  of  John 's  dying  intestate 
without  heirs  of  his  body;  in  such  case,  and  under  the  father's 
will,  the  Statute  of  "Descent"  at  once  applies,  and  distributes 
his  portion  of  his  father's  estate  to  his  brothers  and  sisters,  if 
any  exist ;  if  no  such  exist,  the  statute,  and  not  the  will,  directs 
to  whom  the  estate  shall  go. 


CHAPTER   IV 


WILLS 


Sec, 

76.  Who  may  devise  property. 

77.  A  will   and  testament. 

78.  The    statute    of    Illinois    relat- 

ing to  making  of  wills. 

79.  The    fundamental    and     neces- 

sary   requisites    of    a    valid 
will. 

80.  Exposure   of  human  imperfec- 

tions when  will  offered  for 
probate. 

81.  Insane  persons,  idiots  and  im- 

beciles. 

82.  Mania,  dementia  or  partial  in- 

sanity. 

83.  Delusions. 

84.  Afflicted  with  disease. 

85.  Note. 

86.  What    is    legal    capacity,    the 

rule  in  Illinois. 

87.  General     character     of     wills, 

deeds,  etc. 


Sec. 

88.  Woman  iinder  the   statute  re- 

lating to  wills. 

89.  Testamentary  rights  and  pow- 

ers of  men  and  women. 

90.  Have  the  right  by  will  to  put 

their  property  beyond  the 
reach  of  the  creditors  of  the 
objects  of  their  bounty. 

91.  Where    the   will    or   testament 

is  the  act  of  another  mind. 

92.  Testator      deprived      of      free 

agency. 

93.  The  law  extends   the  greatest 

indulgence  to  use  of  lan- 
guage. 

94.  Interlineations,    erasures     and 

alterations. 

95.  The  acknowledgment. 

96.  The  attesting  of  the  will. 


Sec.  76.  Who  may  devise  property  by  will.  Section  1, 
Chapter  148,  Revised  Statutes  of  Illinois,  pertaining  to  wills  is 
as  follows:  ''Every  male  person  of  the  age  of  twenty-one 
years,  and  every  female  of  the  age  of  eighteen  years,  being  of 
Bound  mind  and  memory,  shall  have  power  to  devise  all  the 
estate,  right,  title  and  interest,  in  possession,  reversion  or  re- 
mainder, which  he  or  she  hath  or  at  the  time  of  his  or  her 
death  shall  have,  of,  in  and  to  any  lands,  tenements,  heredit- 
aments,   annuities   or   rents,    charged   upon   or  issuing   out   of 

41 


42  THE  LAW  OF  ESTATES. 

them,  or  goods  or  chattels,  and  personal  estate  of  every  de- 
scription whatsoever  by  will  or  testament."^ 

77.    A  will  and  testament.    A  will  is  said  to  speak  from  the 
death     of     the     testator  ;2     and     until     the     death     happens, 
devisees  and  legatees  have  no  interest  whatsoever  in  the  property 
given     to     them     by     will.      The     author    of     "Redfield     on 
Wills,"     defines     a     last     will     and     testament,     as,     "the 
disposition  of    one's  property    to    take    effect    after    death." 
A  codicil,    as    defined    by    Bouvier    Law    Dictionary,     is,     "a 
supplement  to  a  will,  an  addition  to,  or  alteration  of  a  will"; 
the  same  authority  defines  the  word  or  term  "devise"  as  used 
to  signify  "a  testamentary  disposition  of  real  estate"  and  the 
word  "bequest"  to  signify  a  gift  by  will  or  testament";  a 
"legacy."     As   most   wills   offered   for   probate    contain   the 
words,  "give,  devise  and  bequeath,"  they  often  apply  to  both 
real  and  personal  estate  of  the  testator;  and  are  authorized 
by  the  language  of  the  statute  of  Illinois ;  it  may,  therefore,  be 
considered  as  certain,  that  such  words  used  in  a  will  and  testa- 
ment, are  used  as  synonymous  terms,  relating  to  the  testa- 
mentary disposition  of  property. 

78.    The  Statute  Law  of  Illinois  relating  to  making  of  wills. 

Section  2,  of  Chapter  148,  entitled  "Wills,"  is  as  follows:  All 
wills,  testaments  and  codicils,  by  which  any  lands,  tenements, 
hereditaments,  annuities,  rents  or  goods  and  chattels  are  de- 
vised, shall  be  reduced  to  writing,  and  signed  by  the  testator 
or  testatrix,  or  by  some  person  in  his  or  her  presence,  and  by 
his  or  her  direction,  and  attested  in  the  presence  of  the  testa- 
tor or  testatrix,  by  two  or  more  credible  witnesses,  two  of 
whom,  declaring  on  oath  or  affirmation,  before  the  county  court 
of  the  proper  county,  that  they  were  present  and  saw  the  testa- 
tor or  testatrix  sign  said  will,  testament  or  codicil,  in  their 

1— Starr  &  Curtis'  Annotated  Vol.  4,  pp.  1283,  1284,  and  cases 
Statutes  of  Illinois,  with  Jones  &  cited;  Kurd's  R.  S.  of  111.,  1905,  p. 
Addington's    Supplements   thereto,     2050. 

Vol.  3,  pp.  4022  to  4026  inclusive;         2— Updike  v.  Thompkins,  100  111. 

406. 


WILLS.  43 

presence,  or  acknowledged  the  same  to  be  his  or  her  act  and 
deed,  and  that  they  believed  the  testator  or  testatrix  to  be  of 
sound  mind  and  memory  at  the  time  of  signing  or  acknowl- 
edging the  same,  shall  be  sufficient  proof  of  the  execution  of 
said  will,  testament  or  codicil,  to  admit  the  same  to  record: 
Provided,  that  no  proof  of  fraud,  compulsion  or  other  im- 
proper conduct  be  exhibited,  which,  in  the  opinion  of  said 
county  court,  shall  be  sufficient  to  invalidate  or  destroy  the 
same ;  and  every  will,  testament  or  codicil,  when  thus  proven 
to  the  satisfaction  of  the  court,  shall,  together  with  the  probate 
thereof,  be  recorded  by  the  clerk  of  said  court,  in  a  book  to 
be  provided  by  him  for  that  purpose,  and  shall  be  good  and 
available  in  law  for  the  granting,  conveying  and  assuring  the 
lands,  tenements  and  hereditaments,  annuities,  rents,  goods  and 
chattels  therein  and  thereby  devised,  granted  and  bequeathed.^ 

79.    Fundamental  and  necessary  requisites  of  a  valid  will. 

First:  The  testator  must  be  twenty-one  years  of  age,  at  the 
time  of  making  his  will;  the  testatrix  must  be  eighteen  years 
of  age  at  the  time  of  making  her  will.  Second:  The  instru- 
ment must  be  in  writing.  Third :  It  must  be  signed  by  the 
testator  or  testatrix,  in  his  or  her  presence  or  by  some  credi- 
ble person,  in  his  or  her  presence,  and  by  his  or  her  direc- 
tion. Fourth:  The  instrument  must  be  attested  in  the  pres- 
ence of  the  testator  or  testatrix,  by  two  or  more  credible  wit- 
nesses, two  of  whom  must  declare  on  oath  when  the  will  is 
offered  for  probate,  that  they  were  present  and  saw  the  testa- 
tor or  testatrix  sign  the  will,  testament  or  codicil  in  their  pres- 
ence, or  acknowledged  the  same  to  be  his  or  her  act  and  deed. 
Fifth :  The  witnesses,  must  under  oath  at  the  time  the  instru- 
ment is  offered  for  probate,  declare  that  they  believed  the 
testator  or  testatrix  to  be  of  sound  mind  and  memory  at  the 
time  of  signing  or  acknowledging  the  said  instrument.    Sixth : 

3 — Starr    &    Curtis'    Annotated  1284;    Vol.    5,    p.    576,    and    cases 

Statutes  of  111.,  with  Jones  &  Ad-  cited;    Kurd's  R.   S.   of  111.,   1905, 

dington's  Supplements  thereto,  same  section,  and  chapter,  p.  2050. 
Vol.  3,  pp.  4026  to  4032;  Vol.  4,  p. 


44  THE  LAW  OF  ESTATES. 

That  there  was  no  fraud,  compulsion,  undue  influence,  or  im- 
proper conduct  (exhibited  or  shown)  at  the  time  of  signing 
or  acknowledging  said  instrument,  which  in  the  opinion  of 
the  proper  court,  where  the  instrument  is  offered  for  pro- 
bate, is  sufficient  to  invalidate  or  destroy  said  instrument 
as  a  will,  testament  or  codicil.* 

80.  Exposure  of  human  imperfections  when  will  offered  for 
probate.  It  is  possible  under  every  will  offered  for  probate, 
to  expose  to  the  world  at  large  the  mental  peculiarities,  ec- 
centricities, degree  of  intelligence  and  mental  capacity  of  the 
testator  or  testatrix,  as  to  whether  he  or  she  at  the  time  of 
making  his  or  her  will,  had  sufficient  mind  and  memory  to  un- 
derstand the  nature  of  the  business  in  hand,  to  properly  make 
testamentary  disposition  of  his  or  her  property  and  effects; 
the  quantum  of  intelligence  being  for  the  court.^  The 
declarations  and  statements  of  a  testator,  made  both  before 
or  after  the  execution  of  his  will,  may  be  proved  for  the  pur- 
pose of  showing  his  mental  condition  at  the  time  of  the  exe- 
cution of  the  will.^  And  where  the  testator  has  made  pre- 
vious wills,  his  declarations  and  statements  made  about  the 
time  of  the  execution  of  those  former  wills,  upon  the  subject 
of,  or  manner  in  which  he  had  therein  disposed  of  his  property, 
have  been  held  to  be  competent  evidence.''^  And  it  is 
held,  in  Craig  v.  Southard,^  all  persons  who  have  the 
means  of  observation  are  permitted  to  testify  concerning 
the  existence  and  measure  of  capacity  of  a  testator,  so  far  as  it 

4— Noble's    Will    Case,    124    111.  507;  Schneider  v.  Manning,  121  111. 

266;    Canatasey  v.  Canatasey,  130  376. 

111.  397;  Gould  V.  Theological  Sem-         6— Craig    v.    Southard,    148    111. 

inary,  189  111.  290;  Critz  v.  Pierce,  37;    Petefish     v.    Becker,     176     111. 

106  111.  167;  Brice  v.  Hall,  120  111.  448;   Hull  v.  Bahrns,  158  111.  314; 

597;  Waugh  v.  Moan,  200  111.  298;  Taylor   v.    Pegram,   151   111.   106. 
Sec.  2,  Chapt.  148,  "Wills;"  Kelly         7— Taylor    v.    Pegram,    151    111. 

V.   Parker,   186  111.   59;   Dickey  v.  106;  Neiman  v.  Schnitker,  181  111. 

Parker,    42    111.    376;     Crowley    v.  403;  Thompson  v.  Bennett,  194  111. 

Crowley,     80    111.     469;     Weld    v.  57;   Wombacher  v.  Barthelme,  194 

Sweeney,   85  111.  50.  111.  425. 

5— Keithley  v.  Stafford,  126  111.        8—148  111.  37. 


WILLS.  45 

may  tend  to  shed  light  upon  the  issue,  and  may  give  their 
opinions  touching  mental  capacity,  based  upon  such  observa- 
tion. The  weight  or  effect  of  such  opinions  depends  upon  the 
means  of  knowledge  of  the  witness  and  the  facts  on  which  it  is 
based,  possible  of  delineation,  and  the  capacity  of  the  wit- 
ness to  correctly  interpret  what  he  has  observed.  Therefore, 
the  facts  upon  which  the  opinion  is  predicted  may  be  gone  into, 
either  to  sustain  and  give  force  to  the  opinion,  or  to  discredit 
it.  And  to  the  same  effect  Baker  v.  Baker.^  Often 
the  habits,  character,  peculiar  eccentricities  and  superstitious 
beliefs,  become  a  subject  of  inquiry,  where  the  testator  or 
testatrix  is  said  to  harbor  or  hold  some  delusion  of  the  mind. 
Thus,  in  Whipple  v.  Eddy,^^  it  is  adopted  as  the  doc- 
trine in  Illinois:  "The  fact  that  a  person  is  afflicted  with  in- 
sanity, or  labors  under  some  delusion,  believes  in  witchcraft, 
clairvoyance,  spiritual  influences,  presentments  of  the  occur- 
rence of  future  events,  dreams,  mind  reading,  etc.,  will  not 
affect  the  validity  of  his  or  her  will  on  the  ground  of  insanity, 
as  a  person's  belief  can  never  be  made  a  test  of  insanity.  It 
being  said  in  that  case,  when  we  leave  the  domain  of  knowl- 
edge and  enter  upon  the  field  of  belief,  the  range  is  limitless, 
extending  from  the  highest  degree  of  rationality  to  the  wild- 
est dreams  of  superstition,  and  no  standard  of  mental  sound- 
ness can  be  based  on  one  belief  rather  than  another.  What  to 
one  man  is  a  reasonable  belief  is  to  another  wholly  unreason- 
able, and  while  it  is  true,  that  belief  in  what  we  generally  un- 
derstand to  be  supernatural  things  may  tend  to  prove  insanity 
under  certain  circumstances,  it  is  a  well  known  fact,  that  many 
of  the  clearest  and  brightest  intellects  have  sincerely  and  hon- 
estly believed  in  spiritualism,  mind  reading,  etc.  In  one  of 
the  early  cases,  which  has  been  cited  often  with  approval,  Ruth- 
erford V.  Morris, ^^  the  court  in  the  beautiful  language 
of  Chancellor  Kent,  say,  "A  man  may  freely  make  his 
testament,  how  old  soever  he  may  be.    It  is  one  of  the  painful 

9—202  111.  608.  11—77  111.  408. 

10—161  111.  122 


46  THE  LAW  OF  ESTATES. 

consequences  of  extreme  old  age,  that  it  ceases  to  excite  in- 
terest, and  is  apt  to  be  left  solitary  and  neglected.  The  con- 
trol which  the  law  still  gives  to  a  man  over  the  disposal  of  his 
property,  is  one  of  the  most  efficient  means  he  has,  in  pro- 
tracted life,  to  command  the  attention  due  to  his  infirmities. 
The  will  of  such  an  aged  man  ought  to  be  regarded  with  great 
tenderness,  when  it  appears  not  to  have  been  produced  by 
fraudulent  acts,  but  contains  those  very  dispositions  which  the 
circumstances  of  his  situation  and  the  course  of  the  natural  af- 
fections dictated."  See  also  Entwistle  v.  Meikle,^-  where  the 
person  making  the  will  was  a  man  of  91  years  of  age  at  the  time. 
In  Smith  v.  Hamline,^^  it  is  said:  While  the  existence  of  an  illicit 
relation  between  the  testator  and  the  beneficiary,  does  not  raise 
a  legal  presumption  of  undue  influence,  it  is  a  circumstance, 
from  which  such  influence  may  be  more  fully  inferred.  And 
such  fact  may  be  shown  and  considered  with  proof  tending  to 
show  constraint  and  interference  by  the  beneficiary;  with  im- 
paired mental  capacity,  loss  of  will  power,  disease  and  other 
impairments  of  the  testator  when  the  will  was  made. 

81.  Insane  persons,  idiots  and  imbeciles,  are  regarded  under 
the  law  as  having  no  mental  faculties  or  capacity.  Such  per- 
sons are  considered  absolutely  incompetent  to  transact  any  and 
all  business;  and,  cannot  do  and  perform  any  binding  act; 
they  are  regarded  as  having  no  mind  by  which  they  can  ex- 
ercise any  free  agency  or  judgment ;  such  cannot  act  for  them- 
selves nor  perform  any  binding  act  under  the  law;  but  they 
may  be  represented  by  conservators,  who  are  persons  created 
by  legislative  enactment,  and  who  must  act  for  such  unfortu- 
nates only,  to  the  extent  and  in  the  manner  pointed  out  and 
directed  by  the  Legislature  of  the  several  states  of  the  Union 
and  the  courts  who  appoint  such  and  give  them  authority. 
Where  insanity  is  established  in  any  form,  those  so  afflicted 
are  considered  incompetent  to  make  valid  testamentary  dispo- 
sition of  their  property.    No  law  has  been  enacted,  and  never 

12—180  111.  9.  13—174  111.  184. 


WILLS.  47 

will  be,  by  which  those  adjudged  insane  and  remain  so,  can 
through  their  legal  representatives  make  a  valid  will;  if  such 
have  property  or  effects,  they  must  of  necessity  die  intestate, 
and  their  property  be  distributed  as  the  law  directs  under  the 
table  of  descent. 

82.  Mania,  dementia  or  partial  insanity.  Bouvier's  Law 
Dictionary,  Section  33,  defines  mania — as  general  or  partial, 
disease  of  the  mind,  which  may  affect  the  intellectual  faculties 
or  the  affective  or  emotional  faculties.  And  it  is  said:  De- 
mentia may  follow  as  a  consequence  or  result  of  mania  or  in- 
juries to  the  brain,  or  it  may  be  senile,  or  peculiar  to  old  age. 
The  question  whether  the  dementia  is  total  or  partial,  is  always 
recognized  as  a  fact  for  the  jury  to  pass  upon.  When  the 
mania  or  dementia  is  continuous,  it  is  considered  the  party  so 
afflicted,  is  incompetent  to  make  a  valid  will;  but  if  the  af- 
fliction is  partial,  occurring  at  intervals,  it  is  presumed  that  at 
times,  the  party  is  sane  and  has  sufficient  mental  capacity  to 
make  a  valid  will.  Thus  it  was  held,  in  Roe  v.  Taylor. ^"^ 
A  testator  possesses  testamentary  capacity,  within  the 
meaning  of  the  law,  when  he  has  an  understanding  of  the  na- 
ture of  the  business  in  which  he  is  engaged,  of  the  kind  and 
value  of  the  property  devised,  and  of  the  persons  who  were  the 
natural  objects  of  his  bounty,  and  of  the  manner  in  which  he 
desires  his  property  to  be  distributed;  unless  affected  with 
some  morbid  and  insane  delusion  as  to  some  one  of  those  nat- 
ural objects  of  his  bounty.  And  it  is  further  said  in  that  case : 
a  person  who  is  not  an  expert,  may  give  his  opinion  concerning 
the  mental  capacity  of  a  testator,  after  first  detailing  the  partic- 
ular facts  and  circumstances  upon  which  he  bases  his  judgment, 
leaving  the  jury  to  fix  such  value  upon  the  opinion  expressed, 
as  the  intelligence  and  capacity  of  the  witness  to  form  it  will 
warrant.  And  in  Yoe  v.  McCord,^^  it  is  said:  he  or 
she  "must  be  sane  with  respect  to  the  matter  in  hand."    The 

H— 45  111.  485.  15—74  III.  33. 


48  THE  LAW  OF  ESTATES. 

following  cases   hold  to  the  general  doctrine  noted  above,  which 
is  now  firmly  established  as  a  settled  rule  of  this  state.^^ 

83.  Delusions.  In  Whipple  v.  Eddy,^'^  it  is  said:  "The 
fact  that  a  person  is  afflicted  with  insanity,  or  labors  under 
some  delusion,  believes  in  witchcraft,  clairvoyance,  spiritual 
influence,  presentiments  or  the  occurrence  of  future  events, 
dreams,  mind  reading,"  etc.,  etc.,  will  not  affect  the  validity  of 
his  or  her  willj  on  the  ground  of  insanity;  as  a  man's  belief 
can  never  be  made  a  test  of  insanity.  And  it  has  nowhere 
been  held  that  an  eccentric  person,  having  his  or  her  pecu- 
liarities cannot  make  a  valid  will.  In  Clauscnnius  v.  Clausen- 
7iius,^^  where  a  testator  disinherited  certain  of  his  children,  be- 
cause of  influence  exerted  by  their  step-mother,  and  where  it 
appeared  the  testator  was  not  affected  by  insane  delusions,  made 
the  issue,  it  was  held,  the  will  was  valid. 

84.  Afflicted  with  disease.  The  testator  or  testatrix  may 
be  afflicted  with  disease,  and  aged.  Yet  if  his  or  her  capacity 
remains  unimpaired  within  the  meaning  of  the  law,  he  or  she 
is  capable  of  making  a  valid  will ;  capacity  existing  it  makes  no 
difference  that  he  or  she  has  suffered  for  two  years  or  more 
with  softening  of  the  brain.^^ 

85.  Note.  The  subjects,  sound  mind  and  memory,  fraud 
and  compulsion,  undue  influence  and  improper  conduct,  will 
be  discussed  and  considered  in  regular  order  in  chapter  pertain- 
ing to  "Contest  of  Wills  in  Chancery." 

86.  What  is  legal  capacity  and  the  rule  best  defining  same 
in  Illinois.     Was  the  testator  or  testatrix  at  the  time  of  sign- 

16— Am.  Bible  Society  v.  Price,  190  111.  102;  Gould  v.  Chicago  The- 

115  111.  640;  Freeman  v.  Easly,  117  ological  Society,  189  111.  292;  Bak- 

111.    317;    Keithly   v.    Stafford,    126  er  v.  Baker,  202  111.  608;  Amos  v. 

111.  507;    Salisbury  v.  Aldrich,  118  Am.  T.  &  S.  Bank,  221  111.  100. 

111.   200;  Schneider  v.  Manning,  121  17—161  111.  122. 

111.  376;  Brace  v.  Black,  125  111.  33;  18—179  111.  545. 

Campbell  v.  Campbell,  130  111.  466;  19 — Rutherford  v.  Morris,  77  111. 

Burt  V.   Quisenbury,   132   111.   385;  397;    Guild   v.    Hull,   127   111.    523; 

Craig    V.    Southard,    148    111.    37;  Bevelot  v.  Lestrade,  153  111.  625. 
Masonic  Orphans'  Home  v.  Gracy, 


WILLS.  49 

ing  the  instrument  of  sound  mind  and  memory?  Do  you  be- 
lieve the  testator  or  testatrix  was  of  sound  mind  and  memory 
at  that  time?  These  same  necessary  questions  are  as  old  as 
the  law  itself;  they  were  the  fundamental  subject  of  inquiry 
under  the  common  law  of  England,  and  date  as  far  back 
as  civilized  nations  enacted  laws  to  govern  the  rights  of  per- 
sons and  property.  What  degree  of  mental  capacity  is  requi- 
site to  the  validity  of  a  will,  and  what  shall  be  the  test  of  that 
capacity  by  the  court  and  jury,  have  been  answered  differ- 
ently by  different  courts.  The  courts  universally  hold,  or 
nearly  so,  that  one  grossly  ignorant,  or  of  very  limited  capac- 
ity, if  otherwise  of  sane  mind,  may  make  any  instrument,  how- 
ever complex  it  may  be,  and  be  bound  thereby.^^  In  Trish  v. 
Newliall,^^  it  is  said:  When  a  court  undertakes  to  inform  the 
jury  what  amount  of  mental  capacity  a  man  must  have  to  know 
and  understand  what  he  is  about,  it  is  futile,  and  tends  rather 
to  mislead  than  to  afford  any  practical  aid  to  a  jury.  Thus  it 
has  been  held  in  Meeker  v.  Meeker,^^  as  one  of  the  rules  in  rela- 
tion to  such  matter,  that  a  person  who  is  capable  of  transacting 
ordinary  business,  is  also  capable  of  making  a  valid  will.  It  is  not 
required  that  he  shall  possess  a  higher  capacity  for  that  than  for 
the  transaction  of  the  ordinary  affairs  of  business.  A  man  ca- 
pable of  buying  and  selling  property,  settling  accounts,  col- 
lecting and  paying  out  money,  or  borrowing  or  loaning  money, 
must  usually  be  regarded  as  capable  of  making  a  valid  disposi- 
tion of  his  property  by  will.  The  rule  is  the  same  in  the  case 
of  a  sale  of  property,  and  its  disposition  by  will,  and  the  usual 
test  is  that  the  party  be  capable  of  acting  rationally  in  the 
ordinary      affairs      of      life.  "^3       The      rule     is     stated      in 

20— Trish  v.  Newhall,  62  111.  204,  Freeman    v.    Easly,    117    111.    317 

and  case  cited  in  opinion;  also  cases  English    v.    Porter,    109    111.    285 

cited  generally  in  this  section.  Schneider  v.  Manning,  121  111.  376 

21—62  111.  204.  Story's  Will  Case,  20  111.  App.  183 

22—75    111.    260.  Campbell  v.  Campbell,  130  111.  481 

23— Brown  v.  Riggin,  94  111.  560;  Myatt  v.  Walker,  44  111.  485;  Trish 

Rutherford  v.  Morris.  77  111.  397;  v    Newhall,  62  111.   204;    Green  v. 

Green,   145   III.   264. 


50  THE  LAW  OF  ESTATES. 

Campbell  v.  Campbell,^^  One  may  have  the  capacity  to 
comprehend  a  few  simple  details,  and  in  consequence  have 
testamentary  capacity  to  make  valid  disposition  of  his  prop- 
erty, while  if  he  had  to  remember  many  facts,  and  comprehend 
many  details,  the  same  degree  of  mental  capacity  would  be 
wholly  insufficient  to  an  intelligent  understanding  of  the  busi- 
ness of  which  he  was  engaged.  The  difficulty  of  stating  stand- 
ards or  tests  by  which  to  determine  the  degree  of  mental  ca- 
pacity of  a  particular  person,  has  been  everywhere  recognized, 
and  grows  out  of  the  inherent  impossibility  of  measuring  men- 
tal capacity,  or  its  impairment  by  disease  or  other  causes.^s 

87.  General  character  of  wills,  deeds,  etc.  A  paper  merely 
signed,  but  not  attested,  cannot  be  treated  as  a  will ;  nor  is  an 
indorsement  made  on  a  benefit  certificate  issued  by  fraternal 
association  or  fraternal  insurance  association,  directing  to 
whom  the  benefit  shall  be  paid  a  will;  and  such  indorsement 
is  not  revoked  by  subsequent  marriage.^^  The  essential  dif- 
ference between  a  will  and  a  deed  is  this,  the  deed  takes  effect, 
if  at  all,  immediately  on  its  execution  and  delivery,  while  a  will 
does  not  take  effect  till  the  testator's  death;  but  the  absence  of 
actual  delivery  does  not  necessarily  invalidate  the  deed,  if  it  ap- 
pears that  the  grantor  retained  possession,  and  that  he  intended 
it  to  take  effect  at  its  date.^^ 

88.  A  woman  under  the  statute  relating  to  wills,  whether 
married  or  single,  has  the  right  and  power  to  devise  by  will 
and  testament  her  separate  estate.  And  under  the  statute  Der- 
taining  to  women,  chapter  68,  sections  7,  9,  10,  may  manage, 
sell  and  convey,  her  separate  property,  to  the  same  extent  and 
in  the  same  manner  that  the  husband  can  property  belonging 
to  him.    She  may  thus  dispose  by  will  of  such  property  owned 

24—130  111.  481.  26— Highland   v.    Highland,    109 

25— Herman    v.    Vogt,    181    111.  111.  367. 

400;  Ring  v.  Lawless,  190  111.  520;  27— Cline  v.  Jones,  111  111.  569; 

Swearington    v.    Inman,    198    111.  Olney  v.  Howe,  89  111.  556;  Bruner 

256;  Compher  V.  Browning,  219  111.  v.   Bruner,  115  111.   40;    Marsey  v. 

429.  Huntington,  118  111.  80. 


WILLS.  51 

by  her  at  the  time  of  her  marriage  or  such  as  she  acquired  dur- 
ing her  marriage  in  good  faith,  from  any  person  other  than 
her  husband,  by  devise,  descent,  or  otherwise.  But  she  has  no 
power  to  devise  her  homestead,  so  as  to  deprive  her  husband 
of  that  estate^  nor  deprive  him  of  his  dower  right  or  other 
right  fixed  by  established  law.^s 

89.  Testamentary  rights  and  powers  of  men  and  women. 

Any  person  competent  to  make  a  will,  or  testamentary  dis- 
posal under  the  statute,  is,  in  general  unlimited,  whether  as 
to  person  or  object.  The  testator  or  testatrix,  acting  free  from 
undue  influence,  may  dispose  of  his  or  her  property  in  any  way 
not  forbidden  by  law;  and  it  makes  no  difference  whether  the 
disposition  is  just  or  unjust.  The  testator  or  testatrix  is  under 
no  obligation  to  divide  equally  among  his  or  her  children;  he 
or  she  may  cut  off  one  and  prefer  another,  or  may  give  all  to 
a  stranger  at  pleasure.^^  An  afterborn  child  may  be  totally 
disinherited,  and  the  bounty  of  the  parents  may  be  limited  to 
any  sum  however  insignificant.^*^  And  it  is  the  settled 
law  of  Illinois,  that  if  one  accepts  a  devise  under  a  will,  they 
will  be  estopped  and  cannot  set  up  any  claim  of  their  own  to 
defeat  any  part  of  the  will,  including  its  reeitgOs  as  to  the  titles 
of  the  testator  or  testatrix.^^ 

90.  Have  the  right  by  will  to  put  their  property  beyond 
the  reach  of  the  creditors  of  the  objects  of  their  bounty.  A 
testator  and  testatrix  in  disposing  of  his  or  her  property  by 
will,  has  the  right  and  power  to  put  the  property  so  disposed 

28— In  re  Tuller,  79  111.  99;  Em-  317;  Schneider  v.  Manning,  121  III. 

mert  v.  Hayes,  89  111.  11;   Henson  376;  Uhlich  v.  Muhlke,  61  111.  499; 

V.  Moore,  104  111.  403;  Starr  &  Cur-  Nicewander  v.  Nicewander,  151  111. 

lis'  Annotated  Statutes  of  111.,  with  156;     McCommon    v.    McCommon, 

Jones  &  Addington's  Supplements  151  111.  428;  Clausennius  v.  Claus- 

thereto.  Vol.  2,  pp.  2124,  2125,  2126  ennius,  179  111.  545. 

to  2132;  Vol,  4,  p.  674,  and  cases  30 — Osborn    v.     Jefferson    Nat'l 

cited;    Kurd's  R.   S.   of  111.,   1905,  Bk.,  116  111.  130. 

same  section  and  chapter,  p.  1147.  31 — Cunningham    v.    Dougherty, 

29— Freeman   v.   Easly,   117   111.  220  111.  45,  and  cases  cited  in  the 

opinion. 


52  THE  LAW  OF  ESTATES. 

of  beyond  the  reach  of  the  creditors  of  the  objects  of  their 
bounty.  They  or  either  of  them  may  devise  a  life  estate  or 
devise  in  trust.^^ 

91.  Where  the  will  or  testament  is  the  act  of  another  mind. 

The  rule  adopted  in  Nicewander  v.  Nicewander^^  is:  There  is 
undue  influence  for  which  a  will  may  be  set  aside,  where,  by 
the  pressure  of  improper  persuasion,  the  testator  or  testatrix,  is 
virtually  deprived  of  his  or  her  free  agency,  so  that  the  will  is 
the  act,  not  of  the  testator's  or  testatrix's  own  mind,  but  that 
of  another. 

92.  Testator  deprived  of  free  agency.  It  is  also  held,  that 
undue  influence,  to  invalidate  a  will,  must  be  connected  with 
the  execution  of  the  will  and  be  operative  at  the  time  the 
will  is  made.  And  it  must  be  such  as  to  deprive  the  testator 
or  testatrix  of  free  agency .^^  And  it  is  immaterial  by  whom  un- 
due influence  is  exercised.^ ^ 

93.  The  law  extends  the  greatest  indulgence  to  use  of  lan- 
guage. It  is  merely  necessary  that  the  will  express  the  in- 
tention of  the  testator  or  testatrix.  Courts  construe  wills,  so 
as  to  ascertain  the  intention  of  the  maker ;  and,  where  the  will 
construed  is  not  inconsistent  with  the  law  of  the  land,  the 
court  will  always  give  effect  to  the  intention  expressed  by  the 
instrument.^^  No  word  or  phrase  wiU  be  rejected  unless  it  is 
unintelligible,  or  so  far  repugnant  to  other  and  controlling  por- 
tions, that  it  can  have  no  effect.^ '^ 

32— Emerson    v.   Marks,    24    111.  337;    Wolfer  v.   Hemmer,   144   111 

App.  642;   Stein  v.  Whitehead,  111  554;   Ducker  v.  Burnham,  146  111 

111.  247.  9;  Cassen  v.  Kennedy,  147  111.  660 

33—151  111.  156.  Allen  v.  McFarland,  150  111.   455 

34— Wilber    v.    Wil  138    111.  Crerar   v.   Williams,   145   111.   625 

446;   Pooler  v.  Christman,  145  111.  Kelly   v.    Gonce,    49    111.    App.    82 

405;    Taylor   v.   Pegram,    151    111.  Perry  v.  Bowman,  151  111.  25;  Rob- 

106;  Purdy  v.  Hall,  134  111.  298.  erts  v.  Roberts,  140  111.  345. 

35— Smith   v.   Hamline,    174    111.         37— Smith  v.  Curry,  52  111    App. 

184.  227;  Bates  v.  Gilbert,  132  111.  287; 

36— In  re  Cashman's  Estate,  134  Rickner  v.  Kessler,  138  111.  636. 
111.  88;  Schafer  v.  Schafer,  141  111. 


WILLS.  53 

94.  Interlineations,  erasures  and  alterations  of  will,  are  al- 
ways a  subject  of  inquiry  and  investigation.^s  A  clause  inter- 
lined in  a  duly  executed  will  is  invalid,  where  it  is  unsigned  and 
the  will  is  not  re-attested.  And  this,  although  the  alteration  is 
made  by  one  of  the  witnesses  by  direction  of  the  testator.  A 
clause  in  a  will  through  the  words  of  which  a  line  is  drawn,  by 
direction  of  the  testator,  before  the  will  was  signed,  will  be  re- 
garded as  cancelled ;  and  it  makes  no  difference  if  the  words  are 
clearly  legible,  it  is  no  more  a  part  of  the  will,  than  if  the  words 
were  completely  obliterated;  nor  than  if  the  clause  had  never 
been  inserted.^^ 

95.  The  acknowledgment,  by  the  testator  or  testatrix,  that 
the  instrument  is  his  or  her  will,  need  not  be  in  words.^^ 

96.  The  attesting  of  the  will.  The  will  if  attested  in  the 
presence  of  the  testator  or  testatrix,  and  where  the  witnesses 
are  in  such  a  position  when  they  sign,  that  the  testator  or 
testatrix  can  see  them  if  he  or  she  chooses,  or  a  formal  request 
and  desire  by  the  testator  or  testatrix  to  witnesses  to  bear 
witness  to  will  is  sufficient. ■^i  It  is  not  necessary  for  a  testator  or 
testatrix  to  state,  or  for  the  subscribing  witnesses  to  know,  that 
the  instrument  which  they  attest  was  his  or  her  will ;  nor  for  him 
or  her  to  acknowledge  to  the  subscribing  witnesses  that  she  had 
signed  it;  it  being  sufficient  if  she  acknowledged  to  them, 
either  by  word  or  acts,  that  the  instrument  was  her  act  and 
deed.42 

38— Hesterbrook    v.    Clark,    166  109;  Harrington  v.  Stees,  82  111.  50; 

111.    241.  Buchanan    v.    McLennan,    105    111. 

39— Laurie  v.  Radnitzer,  166  111.  56;  Drury  v.  Connelly,  177  111.  47; 

609.  Sloan  v.  Sloan,  184  111.  583;  In  re 

40— Allison    v.    Allison,    46    111.  Story's  Will,  20  111.  App.  183;  Gal- 

61;  In  re  Story's  Will,  20  111.  App.  lagher   v.    Kilkeary,    29    111.    App. 

183;   Harp  v.  Parr,  168  111.  474.  415. 

41— Amber  v.  Weishaar,  74  111.  42— In  re  Will  of  Barry,  219  111. 

391. 


CHAPTER   V 


WILLS— CONTINUED 


Sec. 

97.  Nuncupative  wills. 

98.  Conjecture  or  inference  from 

testator's  language  does  not 
constitute  nuncupative  will. 

99.  Citation    or    publication    re- 

quired in  all  cases  where 
nuncupative  will  shall  be 
proved  and  recorded. 

100.  Joint    and    mutual    wills. 

101.  Keith  V.  Miller. 

102.  Revocation  of  will.  Statutory 

requirement. 

103.  Child   born   after    will— Mar- 

riage revokes  prior  will. 


Sec. 

104.  Afterborn  child. 

105.  An  adopted  child  entitled  to 

benefits  of  section. 

106.  Intention  to  disinherit  after- 

born  child  need  not  be  ex- 
pressly stated. 

107.  Mother's    will    attempting   to 

provide  for  her  children  by 
her  own  act  failed. 

108.  Miscellaneous   points. 

109.  Erasure  of  part  of  will,  effect. 

110.  Where    the    codicil     revokes 

the  will. 


Sec.  97.  Nuncupative  wills.  Under  the  statute,  section  15, 
chapter  148,  entitled  ''Wills,"  are  to  be  regarded  as  made  in 
the  time  of  the  last  sickness  of  the  testator  or  testatrix;  such 
wills  when  the  statute  is  followed  strictly  or  substantially  are 
good  and  available  in  law  for  the  conveyance  of  personal  prop- 
erty, thereby  bequeathed.^  Such  will  under  the  statute  must  be 
committed  to  writing  within  twenty  days,  after  the 
making  thereof,  and  proven  before  the  Probate  or 
County  court  by  two  or  more  credible  witnesses,  who 
were  present  at  the  speaking  and  publishing  thereof;  who 
shall  declare  on  oath  or  affirmation,  that  they  were  present 
and  heard  the  testator  pronounce  the  said  words,  and  that  they 
believe  him  or  her  to  be  of  sound  mind  and  memory;  and  that 
he  or  she  did  at  the  same  time,  desire  the  persons  present,  or 
some  of  them,  to  bear  witness  that  such  was  his  or  her  will,  or 

1— McCullom  V.  Chidester,  63  111.477. 

54 


WILLS— CONTINUED.  55 

words  to  that  effect;  and  it  being  also  proven  by  two  disin- 
terested witnesses,  other  than  those  hereinbefore  mentioned, 
that  the  said  will  was  committed  to  writing  within  ten  days 
after  the  death  of  the  testator  or  testatrix;  and  no  proof  of 
fraud,  compulsion  or  other  improper  conduct  be  exhibited, 
which,  in  the  opinion  of  said  court,  shall  be  sufficient  to  invali- 
date or  destroy  the  same ;  and  all  such  wills,  when  proven  and 
authenticated  as  aforesaid,  shall  be  recorded  in  like  manner 
as  other  wills  are  directed  to  be  recorded  by  this  act ;  provided 
that  no  letters  testamentary  shall  be  granted  on  such  will,  until 
the  expiration  of  sixty  days,  after  the  death  of  the  testator  or 
testatrix.  Such  has  been  the  statute  law  of  this  state  since 
1845.2  iji  Baylor  v.  Baylor,^  the  evidence  established'  a  strict  or 
substantial  compliance  with  the  statute,  and  it  was  held,  such 
evidence  established  a  valid  nuncupative  will,  as  the  statutory 
requisites  were  complied  with.*  In  Harrington  v.  Stees,  it  is 
held:  The  statute  restricts  a  person  under  common  law 
power  to  make  nuncupative  will,  in  his  last  illness;  and  al- 
though testator  have  time  to  have  his  will  reduced  to  writing, 
it  may  be  nuncupative ;  no  formal  request  to  witness  such  will 
is  necessary.  And  in  Weir  v.  Chidester,^  it  is  held, 
testator  need  not  use  terms  "devise"  and  "bequeath";  nor  in 
terms  call  persons  to  "witness  his  will"  substantial  compliance 
with  statute  held  sufficient.  But  in  Morgan  v.  Stevens,^  it  is 
held,  there  must  be  at  least  two  witnesses  to  the  facts  essential 
to  the  proving  of  nuncupative  will. 

98.  Conjecture  or  inference  from  testator's  language  does 
not  constitute  nuncupative  will.  While  such  wills  are  fre- 
quently made,  and  have  attained  a  foothold  in  our  jurispru- 
dence, they  are  looked  upon  with  much  suspicion  when  offered 

2 — Starr    &    Curtis'    Annotated  3 — Baylor  v.  Baylor,  9  111.  App, 

Statutes  of  111.,  with  Jones  &  Ad-  410. 

dington's      Supplements      thereto,        4 32  m.  50, 

Vol.  3,  pp.  4043,  4044;  Vol.  4,  p.  1290, 

and  cases  cited;   riurd's  R.  S.  of  ^    ^^  "^-  ^^2- 

111.,  1905,  same  section  and  chap-  6—78  111.  287. 
ter,   p.   2053. 


56  THE  LAW  OF  ESTATES. 

for  probate;  for  if  not  strictly  following  the  law,  or  substan- 
tially following  the  provisions  of  the  statute,  might  open  the 
door  to  frauds  and  impositions  the  statute  was  passed  to  pre- 
vent. In  Arnet  v.  Arnef^  it  is  said:  There  is  noth- 
ing in  this  ease  to  show  that  the  testator  ever  expected  or 
wished  that  any  one  present  should  remember  what  he  had 
said,  or  should  ever  repeat  those  declarations,  or  should  ever 
go  before  any  tribunal  to  prove  that  such  was  his  will.  If 
we  say  that  such  must  have  been  his  desire,  from  the  nature  of 
things,  that  is  but  conjecture  at  last,  and  the  legislature  has 
declared  that  such  conjecture  shall  not  be  sufficient.  Under- 
standing the  operations  of  the  human  mind  as  well  as  any  of 
us,  the  legislature  knew  that  most  likely  any  one  would,  in 
extremis,  declare  to  those  about  him  the  disposition  he  wished 
made  of  his  property,  would  also  desire  that  those  present 
would  remember  and  bear  witness  to  his  wish.  Such  an  infer- 
ence must  necessarily  arise  in  almost  every  case  where  a  will 
is  declared  by  a  dying  man  to  those  around  him,  but  the  law- 
makers thought  it  unsafe  to  rely  upon  such  inference,  however 
strong,  and  saw  fit  to  require  a  direct  expression  of  such  wish 
by  the  testator  at  the  time  of  pronouncing  the  words  of  the 
will.  In  re  Grossmati's  Estate,^  decedent  was  taken 
suddenly  ill,  and  an  operation  was  set  for  three  o'clock  the 
next  day,  and  his  brothers  and  others  consulted  with  him 
about  his  making  a  will;  one  of  the  brothers  wrote  down  the 
wishes  of  decedent,  and  said  he  would  write  it  up  and  send  it 
over  in  the  morning,  and,  if  it  was  right,  decedent  could  sign  it, 
and,  if  not  right,  it  could  be  made  so.  Nothing  was  said  by 
decedent  as  to  desiring  any  one  present  to  bear  witness  that 
it  was  his  will,  as  provided  in  Revised  Statutes,  chapter  148, 
section  15,  relating  to  nuncupative  wills.  The  next  morning, 
before  the  will  was  brought  to  him,  he  was  dead.  Held,  not  to 
be  valid  as  a  nuncupative  will. 

99.    Citation  or   publication  required  in   all  cases   where 
nuncupative  will  shall  be  proved  and  recorded.    The  court  shall 

7—27  111.  247.  8—175  111.  425. 


WILLS— CONTINUED.  57 

issue  a  citation  to  the  heirs  and  legal  representatives  of  the 
testator  or  testatrix,  if  they  reside  in  the  county,  if  not,  then 
said  court  shall  cause  an  advertisement  to  be  inserted  in  some 
one  of  the  newspapers  printed  in  the  state,  notifying  the  said 
heirs  and  legal  representatives  of  the  testator  or  testatrix,  at 
which  time  and  place  letters  testamentary  will  be  granted  upon 
such  will,  requiring  them  and  each  of  them  to  appear  and  show 
cause,  if  any  they  have,  why  letters  testamentary  should  not 
be  granted;  and  if  no  sufficient  cause  be  shown,  letters  shall 
be  granted  thereon,  as  in  other  cases.^ 

100.  Joint  and  mutual  wills.  Such  wills  are  held  valid,  as 
the  separate  will  of  whichever  dies  first;  they  are  often  the 
subject  of  litigation  and  generally  prove  unsatisfactory  to  the 
parties  making  the  same;  resulting  trust  litigation  is  often 
the  outcome  of  such  wills.  Under  the  law  two  or  more  persona 
may  execute  a  joint  will,  which  will  operate  as  if  executed 
separately  by  each,  and  will  require  a  separate  probate  upon 
the  death  of  each  as  his  or  her  will.^*^ 

101.  In  Keith  v.  Miller?-'^  The  facts  of  record  show, 
that  Keith  and  his  wife  were  married  in  1845,  were  well 
advanced  in  years  and  were  without  children.  They  had  a 
farm  of  280  acres  of  valuable  land,  the  accumulation  of  their 
joint  labor;  they  talked  over  the  matter  as  to  how  it  should  be 
disposed  of  at  their  death.  The  husband's  evidence  shows, 
that  he  and  his  wife  talked  over  their  affairs  and  about  the 
land  each  should  have,  and  after  that  conversation  it  was  re- 
duced to  writing  in  these  wills,  that  it  was  put  in  the  wills 
just  as  they  agreed;  that  he  wrote  the  wills  and  they  were  in 
his  own  handwriting.     The  court  holding,  where  husband  and 

9— Statutes,   Chap.    148,  sec.   16,  10— Re  Diez,  50  N.  Y.  88;   Kun- 

entitled   "Wills;"   Starr  &   Curtis'  nen  v.  Zurline,  2  Cin.  (Ohio)  440; 

Annotated      Statutes    of     Illinois,  Schumacher   v.    Schmidt,    44    Ala. 

with  Jones  &  Addington's  Supple-  454. 

ments   thereto.   Vol.     3,    p.     4044;  11—174  111.  64.     See  cases  cited 

IHurd's  R.  S.  of  111.,  1905,  same  sec-  in  opinion, 
tion  and  chapter,  p.  2053. 


58  THE  LAW  OF  ESTATES. 

wife  having  agreed  upon  a  testamentary  disposition  of  their 
property,  and  the  husband  prepares  two  wills  at  the  same  time 
to  give  effect  to  that  agreement,  the  wills  will  be  construed  to- 
gether as  a  single  instrument.  Citing  the  well  established  rule, 
"that  where  different  instruments  are  executed  as  the  evidence 
of  one  transaction  or  agreement,  they  are  to  be  read  and  con- 
strued as  constituting  but  a  single  transaction.  "12 

102.  Revocation  of  vdll — how  accomplished.  Revised  Stat- 
utes of  Illinois,  chapter  148,  section  17,  is  as  follows:  "No 
will,  testament  or  codicil  shall  be  revoked,  otherwise  than  by 
burning,  cancelling,  tearing  or  obliterating  the  same,  by  the 
testator  himself,  or  in  his  presence,  by  his  direction  and  con- 
sent, or  by  some  other  will,  testament  or  codicil  in  writing, 
declaring  the  same,  signed  by  the  testator  or  testatrix,  in  the 
presence  of  two  or  more  witnesses,  and  by  them  attested  in  his 
or  her  presence ;  and  no  words  spoken  shall  revoke  or  annul 
any  will,  testament  or  codicil  in  writing,  executed  as  afore- 
said, in  due  form  of  law.''^^ 

In  Stetson  v.  Stets&n,^'^  the  statute  is  cited  and  ap- 
plied in  these  words.  No  will  can  be  revoked  other  than 
by  burning,  cancelling,  etc.,  or  by  some  other  "will,  testament 
or  codicil"  and  cannot  be  revoked  by  any  writing  not  testa- 
mentary in  character;  the  destruction  of  a  will  which  revoked 
a  former  one,  revives  the  former.  It  is  also  held  in  the  same 
case,  that  the  English  statute  of  Victoria,  providing  that  no 
will  or  codicil,  which  has  in  an}'  manner  been  revoked,  shall 
be  revived  otherwise  "than  by  a  re-execution  thereof,  or  by  a 
codicil  showing  an  intention  to  revive  the  same"  has  not  been 
adopted  by  the  courts  of  Illinois  and  is  not  the  law  of  this  state. 
Under  Colorado  statute  erasure  of  will  held  to  revoke  same.^^ 

12— Wilson  V.  Roots,  119  111.  379;  Vol.   3,  pp.   4044,   4045;    Vol.   4,  p. 

Gardt  v.  Brown,  113,  475;  Duncan  1290;    Vol.    5,    p.    579,    and    cases 

V.    Charles,    4    Scam.     (111.)     561;  cited;    Kurd's  R.   S.    of    111.,   1905, 

Freer  v.  Lake,  115  111.  622.  same  section  and  chapter,  p.  2053. 

13— Starr    &    Curtis'    Annotated  14—200  111.  601. 

Statutes  of  Illinois,  with  Jones  &  15 — Glass  v-   Scott,   14  Colo.  Ct. 

Addington's    Supplements   thereto,  of  App.   378. 


WILLS— CONTINUED.  59 

103.    Child  bom  after  will — marriage  revokes  prior  will. 

Revised  Statutes  of  Illinois,  chapter  39,  section  10,  "Descent," 
is  as  follows :  "If,  after  making  a  last  will  and  testament,  a  child 
shall  be  born  to  any  testator,  and  no  provision  be  made  in  such 
will  for  such  child,  the  will  shall  not  on  that  account  be  revoked ; 
but  unless  it  shall  appear  by  such  will  that  it  was  the  intention 
of  the  testator  to  disinherit  such  child,  the  devises  and  legacies 
by  such  will  granted  and  given,  shall  be  abated  in  equal  pro- 
portions to  raise  a  portion  for  such  child  equal  to  that  which 
such  child  would  have  been  entitled  to  receive  out  of  the  estate 
of  such  testator  if  he  had  died  intestate,  and  a  marriage  shall 
be  deemed  a  revocation  of  a  prior  will.  "^^^ 

In  Hundall  v.  Ham,^'^  this  section  of  the  statute  was 
held  constitutional.  In  that  case  the  court  speaking  of  the  pro- 
vision of  the  statute,  "a  marriage  shall  be  deemed  a  revocation 
of  a  prior  will."  Prior  to  the  enactment  of  this  statute  it  was 
held  in  this  state,  where  husbands  and  wives  are  heirs  to  each 
other,  a  subsequent  marriage  operated  as  a  revocation  of  a  will, 
disposing  of  the  whole  estate  of  the  testator,  which  made  no 
provision  for  such  contingency  or  change  of  relation  as  the  sub- 
sequent marriage.^*  Under  these  decisions  the  will  of  J.  T. 
would  have  been  revoked  by  his  subsequent  marriage  regard- 
less of  the  provisions  of  the  statute,  since  the  will  contained 
no  provision  in  contemplation  of  the  relation  arising  out  of 
such  marriage,  unless  the  rule  in  that  respect  would  be  affected 
by  the  terms  of  the  ante-nuptial  contract.  That  contract  de- 
clared that  Mary  F.  had  been  informed  of  the  will,  and  ap- 
proved of  it,  and  she  agreed  that  she  would  not  interfere  with 
it  in  any  way  during  the  lifetime  of  the  said  J.  T.,  or  there- 
after.    It  is  argued  on  behalf  of  the  claimants  under  the  will 

16— Starr    &    Curtis'    Annotated  17—172   111.   82;    Tyler  v.  Tyler, 

Statutes  of  Illinois,  with  Jones  &  19  111.  151 ;  Am.  Bd.  of  Forg'n  Mis- 

Addington's   Supplements   thereto,  sions  v.  Nelson,  72  III.  564 ;  Duryea 

Vol.  2,  p.  1433;  Vol.  4,  p.  438;  Vol.  v.  Duryea,  85  111.  41. 

5,  p.  177,  and  cases  cited;   Kurd's  18 — Hundall  v.  Ham,  172  111.  85. 
R.   S.   of   111.,    1905,   same   section 
and  chapter,  p.  765. 


60  THE  LAW  OF  ESTATES. 

that  this  agreement  prevented  a  revocation  under  the  rule  prior 
to  the  passage  of  the  statute,  and  that  there  was  no  revocation 
under  the  statute  because  of  its  invalidity.  It  will  not  be 
necessary  to  consider  the  effect  of  her  agreement  upon  her 
rights,  for  the  reason  that,  if  the  statute  is  valid,  plaintiffs  in 
error  have  a  right  to  claim  the  benefit  of  it,  and  the  will  is 
revoked  by  virtue  of  the  statute.  Page  85,  the  statute  was 
passed  at  the  same  session  of  the  legislature  as  the  Statute  of 
Wills  providing  for  a  revocation  of  a  will  by  particular  means 
mentioned  in  that  statute,  and  the  two  provisions  are  to  be 
read  together,  as  embracing  the  legislative  will  on  that  subject. 

104.  Afterborn  child.  In  Salem  National  Bank  v.  White,^^ 
the  statute  relating  to  afterborn  child  was  again  con- 
.strued  and  applied  as  to  the  rights  of  such  child.  The 
court  by  its  opinion  finds  the  testator  died  on  December  13, 
1863,  without  changing  or  amending  his  will,  which  was  duly 
probated,  it  being  held  from  that  fact  that  it  does  not  appear 
that  William  White  intended  to  disinherit  Joseph  I.  White, 
it  follows,  that  the  devise  of  the  mortgaged  premises,  except 
the  said  strip,  should  be  abated  to  raise  a  portion  for  appellee, 
Joseph  I.  White,  equal  to  that  which  he  would  have  been  en- 
titled to  receive  out  of  the  estate  of  William  White,  if  the  latter 
had  died  intestate.  In  other  words,  under  the  construction 
given  to  the  foregoing  statute  by  this  court  in  Ward 
V.  Warc?,2o  Joseph  I.  White  is  entitled  to  an  undivided  one- 
fourth  part  of  that  portion  of  the  premises  embraced  in  the 
mortgage,  of  which  his  father  died  seized,  and  which  was  de- 
vised to  his  mother  and  his  brothers  and  sisters,  subject  to  the 
dower  therein  of  his  mother,  the  widow,  Susan  White. 

105.  An  adopted  child  entitled  to  benefits  of  this  section. 
In  Howard  v.  Flannigan,-^  it  is  held,  an  adopted 
child,  is  entitled  to  the  benefits  of  this  section.  The  court 
quoting  the  section  of  the  statute  in  question,  say:     That  act 

19—159  111.  136.  21—200  111.  400. 

20—120  111.  111. 


WILLS— CONTINUED.  61 

was  in  force  July  1,  1872.  The  Act  of  1867,  providing  for 
the  adoption  of  children  was  then  in  force.  (Gross'  Statute, 
Ed.  1869-319.)  That  act  provides  that  the  relation  between 
a  person  adopting  a  child  and  such  child  should  be,  as  to  their 
rights  and  liabilities,  the  same  as  if  the  relation  of  parent  and 
child  existed  between  them,  except  that  the  adoptive  father  or 
mother  should  never  inherit  from  the  child.  Afterwards  the 
law  in  relation  to  the  adoption  of  children  was  revised  by  the 
act  in  force  July  1,  1874,  constituting  chapter  4  of  the  Revised 
Statutes,  section  5  of  that  act  being  as  follows:  "A  child  so 
adopted  shall  be  deemed,  for  the  purpose  of  inheritance  by 
such  child,  and  his  descendants  and  husband  or  wife,  and 
other  legal  consequences  and  incidents  of  the  natural  relation 
of  parents  and  children,  the  child  of  the  parents  by  adoption, 
the  same  as  if  he  had  been  born  to  them  in  lawful  wedlock, 
except  that  he  shall  not  be  capable  of  taking  property  ex- 
pressly limited  to  the  body  or  bodies  of  the  parents  by  adop- 
tion, nor  property  from  the  lineal  or  collateral  kindred  of  such 
parents  by  right  of  representation."  By  this  section  an 
adopted  child,  for  the  purpose  of  inheritance  and  other  legal 
consequences  and  incidents  of  the  natural  relation  of  parents 
and  children,  is  declared  to  be,  in  law,  the  child  of  the  parents, 
the  same  as  if  he  had  been  born  to  them  in  lawful  wedlock, 
except  as  therein  stated.  By  the  plain  and  unambiguous  lan- 
guage of  the  statute  the  right  of  the  plaintiff  in  error  to 
inherit  from  B.  H.  is  made  identical  with  the  right  of  a  child 
born  to  her,  and  when  plaintiff  in  error  became  her  child  by 
adoption  after  the  making  of  the  will,  the  effect,  in  law,  was 
precisely  the  same  as  the  birth  of  a  child  to  the  testatrix.22 

106.    Intention  to    disinherit  after  born  child    need  not  be 
expressly  stated.    In   Hawhe   v.    C.   &    W,   I.   R.   B.    Co.,"^'^ 

22— Watts  V.  Dull,  184   111.   91;  thereto.  Vol.  1,  p.  354;   Vol.   4,  p. 

Webb   V.   Jackson,   6   Colo.    Ct.    of  46;  Vol.  5,  p.  22,  and  cases  cited; 

App.   211;    Starr  &   Curtis'   Anno-  Kurd's  R.  S.  of  111.,  1905,  same  sec- 

tated    Statutes    of    Illinois,    with  tion  and  chapter,  p.  128. 

Jones  &  Addington's  Supplements  23 — 165  111.  567. 


G2  THE  LAW  OF  ESTATES. 

it  is  said:  There  is  another  significant  fact  which  has 
an  important  bearing  on  the  construction  of  the  will.  At  the 
time  the  will  was  executed  by  the  testator  he  had  two  children 
then  living,  one  four  and  the  other  two  years  old.  These  chil- 
dren were  excluded  from  taking  any  portion  of  the  testator's 
estate  by  will.  Is  it  reasonable  to  believe  that  the  testator 
intended  to  exclude  these  two  infants  and  not  at  the  same  time 
exclude  another  child  to  be  born  within  the  next  two  months 
after  the  will  was  executed?  It  seems  plain,  if  the  testator 
had  intended  to  make  any  distinction  between  his  children 
then  born  or  unborn,  he  would  have  inserted  a  provision  in 
his  will  manifesting  that  intention.  In  order  to  disinherit 
appellant  the  testator  was  not  required  to  state  the  fact  in 
express  terms  in  the  will.  It  is  enough  that  the  intention 
appears  from  the  will,  upon  consideration  of  all  its  provisions. 
The  statute  in  question  was  before  the  court  in  0 shorn 
V.  Jefferson  National  Bank,^^  and  in  the  decision  of 
that  case  it  was  among  other  things  said  (p.  136) ;  But  whether 
any  provision  is  made  for  afterborn  children  or  not,  the  will, 
under  the  statute,  must  still  remain  as  originally  made,  **if  it 
shall  appear  by  such  will  that  it  was  the  intention  of  the  testa- 
tor to  disinherit  such  child  or  children,"  In  Laurie 
V.  Radnitzer,^^  the  same  doctrine  was  applied,  where  the 
will  contained  nothing  from  which  it  could  justly  be  said  the 
testator  did  not  intend  the  afterborn  child  should  inherit.  The 
court  holding,  that  it  does  not  appear  by  the  will  in  question, 
expressly  or  by  implication,  that  the  testator  intended  to  dis- 
inherit the  child  in  question,  and  that  such  child  did  inherit 
under  the  section  of  the  statute.^^ 

107.  Mother's  will  attempting  to  provide  for  her  children, 
by  her  own  act,  failed.  In  Oshorn  v.  Jefferson  National 
Banli,^''  the  testatrix,  soon  after  her  marriage,  being  about 
to  go  abroad,  made  and  published  her  last  will  and  testament. 

24—116  111.  130.  26— See    Sherrer    v.    Brown,    5 

25—166  111.  609.  Colo.  Ct.  of  App.  255, 

27—116  111.  130. 


WILLS— CONTINUED.  63 

One  of  the  paragraphs  of  the  will,  as  shown  by  the  record  of 
the  ease,  is  as  follows:  "In  ease  my  husband,  Francis,  shall 
not  survive  me,  and  I  shall  die  leaving  a  child  or  children,  then 
I  give,  devise  and  bequeath  unto  such  child^  or  if  there  be  more 
than  one,  then  to  such  children,  forever,  all  my  estate,  property 
and  effects,  real  and  personal,  in  whatever  it  may  consist  or 
wherever  situated  at  the  time  of  my  decease."  The  testatrix 
died  in  1880,  leaving  her  surviving  three  children,  born  after 
the  execution  of  the  will,  and  her  husband.  Held,  that  the  will 
showed  a  clear  intention  on  the  part  of  the  testatrix  to  disin- 
herit her  afterborn  children,  in  case  of  her  husband  surviving 
her,  the  court  saying :  The  testatrix  in  this  case  had  the  power 
to  disinherit  her  afterborn  children,  and  she  has  seen  proper 
to  do  it  upon  a  contingency  which  has  happened,  and  great  as 
the  hardship  to  them  may  be,  we  feel  constrained  to  hold  that 
the  will,  under  the  statute,  is  valid,  and  must  be  enforced  as 
their  mother  made  it  and  allowed  it  to  remain  unrevoked  and 
unchanged  till  her  death. 

108.  Miscellaneous  points.  The  marriage  of  testator  re- 
vokes prior  will  absolutely ;  and  means  marriage  of  either  man 
or  woman.  And  the  presumption  of  law  is,  testator  knew  that 
subsequent  marriage  revokes  his  will.^^ 

109.  Erasure  of  part  of  will  effect.  Where  a  bequest  in  a 
will  has  been  erased  by  the  testator  by  the  drawing  of  lines 
across  the  words  comprising  it,  the  erased  portion  ceases  to  be 
a  part  of  the  will,  as  much  so  as  if  it  had  never  been  inserted 
in  it.29 

110.  Where  the  codicil  revokes  the  will.  In  Vestal  v.  Gar- 
reft,^^  the  rule  is  laid  down  that  a  codicil  revokes  the  will 
only  in  so  far  as  it  is  clearly  inconsistent  therewith ;  the  codicil 
in  question  did  not  revoke  the  devise  to  the  daughter,  but  only 

28— Duryea  v.  Duryea,  85  III.  41;         29— Hubbard  v.  Hubbard,  198  111. 
McAnnulty  v.  McAnnulty,  120  111.     621. 
26;   Crum  v.  Sawyer,  132  111.  443;         30—197  111.  398. 
Sloniger  v.  Sloniger,  101  111.  278; 
Hundall  v.  Ham,  172  111.  82. 


64  THE  LAW  OF  ESTATES. 

incumbered  the  land  given  her  with  a  life  estate  in  favor  of 
testator's  wife,  especially  as  otherwise  the  fee  in  such  land 
would  have  been  left  intestate,  and  as  other  clauses  in  the  will 
giving  life  estates  in  every  instance  provided  for  a  disposition 
of  the  fee.  The  general  rule  applied  in  this  case  being :  * '  Where 
a  codicil  is  appended  to  a  will  and  does  not  contain  any  clause 
of  revocation,  the  provisions  of  the  will  are  to  be  disturbed  only 
so  far  as  is  absolutely  necessary  to  give  effect  to  the  provisions 
of  the  codicil,  and  in  other  respects,  such  a  will  and  codicil  are 
to  be  construed  together."** 

31 — Page  on  Wills,  sec.  462,  and  cases  cited  in  notes. 


CHAPTER  VI 


PROBATING  WILLS  IN  COURTS  OF  PROBATE 


Sec. 

111.  Petition  to  be  filed,  notice  to 

be  given. 

112.  The    facts    required    by    peti- 

tion must  be  stated  truth- 
fully. 

113.  Court   of   probate    at    subse- 

quent term  may  set  aside 
order  of  probate,  for  fraud 
or  lack  of  jurisdiction. 

114.  Probate    of    will    before    and 

after  act  of  1897. 

115.  Witnesses  to  will. 

116.  Where    subscribing   witnesses 

to  will   are  dead,  lost  will. 

117.  What     necessary     to      show 


Sec. 

when   will  offered  for  pro- 
bate. 

118.  Will   to   remain    with    clerk, 

copies  evidence. 

119.  Foreign  will  admitted  to  pro- 

bate.   Effect  of  wills  proven 
without  the  state. 

120.  Will    to    be    recorded,    notice. 

certified  copies  as  evidence. 

121.  Authentication      of      foreign 

will. 

122.  Notice  of  foreign  will,  to  ad- 

verse interests. 

123.  Foreign     wills     admitted     to 

probate. 

124.  Place  of  probate. 


Sec.  111.    Petition  to  be  filed — notice  to  be  given.  Par.  21, 

section  1,  chapter  148,  * '  Wills, ' '  provides :  ' '  That  before  any  will 
shall  be  admitted  to  probate  the  person  desiring  to  have  the  same 
probated  shall  file  a  petition  in  the  probate  court  of  the  proper 
county  asking  that  said  will  be  admitted  to  probate,  which 
petition  shall  state  the  time  and  place  of  the  death  of  the 
testator  and  the  place  of  his  residence  at  the  time  of  his  death; 
also  the  names  of  all  the  heirs-at-law  and  the  legatees,  with  the 
place  of  residence  of  each,  when  known,  and  when  unknown, 
the  petition  shall  so  state,  and  the  said  petition  shall  be  verified 
by  the  affidavit  of  the  petitioner.  And  thereupon  the  clerk  of 
said  county  court  shall  send  by  mail  to  each  of  said  parties 
a  copy  of  said  petition  within  five  days  after  the  filing  thereof, 
and  not  less  than  twenty  days  prior  to  the  hearing  on  said  peti- 
tion. And  in  case  the  postoffice  address  of  any  of  said  parties 
5  65 


66  THE  LAW  OF  ESTATES. 

is  not  shown  by  the  said  petition,  then  publication  shall  be 
made  for  at  least  three  weeks  before  the  day  set  for  the  hear- 
ing in  a  newspaper  of  general  circulation  published  in  the 
county  where  said  will  is  to  be  offered  for  probate,  which  pub- 
lication notice  shall  contain  the  name  of  the  testator,  the  heirs- 
at-law  and  legatees,  when  known,  the  time  and  place  where 
said  will  is  to  be  offered  for  probate:  Provided,  that  in  case 
such  a  petition  is  not  filed  and  a  will  has  been  deposited  in  said 
county  court  for  the  space  of  10  days,  then  it  shall  be  the  duty 
of  the  county  court  to  proceed  to  probate  said  will  without 
petition  being  filed,  but  only  after  having  caused  publication 
and  notice  of  the  intention  to  probate  said  will  to  be  given  to 
the  parties  in  interest  as  to  the  court  may  seem  proper."  As 
amended  by  Act  in  relation  to  the  probate  of  wills,  in  force 
July  1,  1897.1 

112.  The  facts  required  must  be  stated  correctly  and  truth- 
fully. In  the  case  of  W  rigid  v.  Simpsan,-  the  record 
shows  that  the  parties  petitioning  for  the  probate  of  a  will, 
knowingly  and  intentionally  omitted  the  name  of  one  of  the 
heirs-at-law,  a  daughter  of  the  deceased,  so  that  she  had  no 
notice  whatsoever  of  the  order  admitting  the  will  to  probate, 
until  too  late  to  take  an  appeal  as  provided  by  the  probate  act. 
It  appears,  that  as  soon  as  the  heir  ascertained  what  had  been 
done,  and  at  a  subsequent  term  of  the  probate  court,  she  filed 
her  petition  in  that  court,  alleging,  "that  if  she  had  received 
notice,  she  could  have  made  a  good  defense  by  showing,  the 
parties  petitioning  for  probate  of  the  will  actually  knew  she 
was  a  daughter  of  deceased,  and  should  have  named  her  in  the 
petition  filed  by  them  for  the  probate  of  the  will  in  question 
as  an  heir. ' '  The  court  in  its  opinion  in  that  case  say :  ' '  The 
admission  of  said  will  to  probate  acted  as  a  judgment,  obtained 
by  fraud,  and  such  judgment  could  be  re-examined  and  set 

1 — Starr    &    Curtis'     Annotated  579,  and  cases  cited;  Kurd's  R.  S. 

Statutes  of  Illinois,  with  Jones  &  of  111.,  1905,  same  paragraph,  sec- 

Addington's   Supplements   thereto,  tion  and  chapter,  p.  2054. 

Vol.  4,  pp.  1290,  1291;   Vol.   5,  p.  2—200  111.  62. 


PROBATING  WILLS.  67 

aside  at  a  subsequent  term  of  the  probate  court  by  the  party- 
aggrieved  by  the  fraud,  under  the  well  settled  rule  of  law, 
that  a  court  may  protect  its  own  dignity  and  prevent  itself 
from  being  made  an  instrument  in  the  hands  of  a  designing 
man  to  accomplish  a  wrong."  In  applying  this  rule,  however, 
the  court  specifically  states,  that  no  question  of  the  rights  of 
third  parties  arise  on  the  record.^ 

113.  The  Court  of  Probate  at  a  subsequent  term  may  set 
aside  its  order  of  probate  where  fraud  is  shown,  or  it  is  lacking 
in  jurisdiction.  In  Wt-ight  v.  Simpson,'^  cited  in  the  pre- 
ceding section,  it  is  also  said:  That  a  compliance  with  the 
statute  is  necessary  and  requisite  to  the  probate  of  a  will ;  that 
the  probate  court  is  warranted  in  setting  aside  the  probate  of 
a  will  after  the  lapse  of  the  term  of  such  court,  at  which  the 
order  of  probate  was  obtained  in  consequence  of  fraudulent 
acts,  notwithstanding  the  aggrieved  party  has  filed  a  bill  in 
chancery  to  contest  the  will  and  its  probate.  In  the  case  of 
Davis  V.  Vpson,^  it  is  held:  It  is  not  within  the  gen- 
eral jurisdiction  of  courts  of  equity  (in  the  absence  of  enabling 
statutes),  to  entertain  bills  to  set  aside  the  probate  of  will  on 
the  ground  the  probate  court  was  lacking  in  jurisdic- 
tion.^ But  if  the  probate  court  was  lacking  in  jurisdic- 
tion of  the  subject  matter,  as  found  by  the  appellate  court,  the 
judgment  admitting  the  will-  to  probate  could  be  revoked  by 
motion  entered  either  at  the  term  at  which  the  judgment  was 
made  or  at  any  subsequent  term.  If  jurisdiction  was  lacking, 
the  proceedings  resulting  in  the  admission  of  the  will  and 
codicil  to  probate  is  void,  and  may  be  set  aside  at  any  time 
by  motion  in  the  probate  court. 

114.  The  probate  of  a  will  before  and  after  the  act  of  1897. 

Prior  to  the  act  in  question,  the  probate  of  a  will  was  an  ex 

3— Bateman  v.  Reitler,  19  Colo.        6— Luther    v.    Luther,    122    111. 

547.  558;   23  Am.  &  Eng.  Enc'y  of  La-w- 

4—200  111.  56.  (2d  Ed.),  136,  138. 
5—209  111.  211. 


68  THE  LAW  OF  ESTATES. 

parte  proceeding,  wherein  the  inquiry  of  the  court  was  limited 
to  the  determination  of  the  facts  pertaining  to  the  execution 
of  the  will  specified  in  section  2  of  the  act  entitled  ''Wills." 
That  section  contemplated  no  contest,  and  required  no  citation 
of  the  heirs-at-law  and  legatees  or  other  representatives  of  the 
testator.  The  act  of  1897  does  require  notice  to  such  par- 
ties, and  is  in  fact  preliminary  to  a  contest,  and  where,  under 
the  late  act  for  the  probate  of  the  willj  which  must  be  read  in 
connection  with  section  7  of  the  same  act,  the  probate  is  de- 
nied, no  contest  can  be  had  in  chancery,  the  remedy  is  by  ap- 
peal.'^ 

115.  Witnesses  to  will.  Section  3  of  the  act  relating  to 
Wills  empowers  the  court  of  probate  to  compel  the  attend- 
ance of  attesting  witnesses,  who  may  be  fined  and  imprisoned 
if  they  fail  to  appear  w^hen  duly  summoned;  if  the  witness 
should  be  a  non-resident  a  dedimus  protestatum  may  issue 
from  the  court,  with  interrogatories  in  chief  and  cross  for 
such  witness  to  answer,  directed  to  officers  authorized  by  law 
to  take  evidence  and  administer  oaths.^ 

116.  Where  subscribing  witnesses  to  will  are  dead — lost 

will.  If  the  wall  appears  to  have  been  regularly  executed  and 
the  signatures  of  the  testator  and  of  the  deceased  subscribing 
witnesses  are  proved  to  be  genuine,  the  inference  arises  that 
the  witnesses  believed  the  testator  to  be  of  sound  mind  and 
memory,  even  though  there  is  no  recital  to  that  effect  in  the 
attestation  clause,  and  there  is  proof  that  the  testator  at  the 
time  the  will  was  made,  transacted  intelligently  the  ordinary 
business  affairs  of  life.  The  opinion  was  rendered  in  connec- 
tion with  the  construction  of  section  2,  chapter  148,  of  wills; 
and  section  6  of  the  same  act  providing  for  proof  of  hand 
writing  of  deceased  witnesses  and  for  the  taking  of  secondary 

7 — Clausennius    v.    Clausennius,  Addington's    Supplements   thereto, 

179   111.   552;    Wright   v.   Simpson,  Vol.    3,    pp.    4033,    4034    and    cases 

200  111.  63.  cited;    Kurd's  R.    S.   of   111.,   1905, 

S — Starr  &  Curtis'  Annotated  same  section  and  chapter,  p.  2050. 
Statutes  of  Illinois,  with  Jones  & 


PROBATING  WILLS.  69 

evidence,  in  "all  cases  where  any  one  or  more  of  the  witnesses 
of  any  will,  testament  or  codicil,  shall  die,  become  insane,  or 
remove  to  parts  unknown  to  parties  concerned,  so  that  his  or 
her  testimony  cannot  be  procured,"  etc.  Moore  v.  Moore.^ 
It  appears  to  be  the  established  law,  that  where  a 
written  instrument  has  in  fact  been  made,  executed  and  deliv- 
ered, and  afterwards  lost  or  destroyed,  or  not  produced  under 
proper  notice  to  the  party  having  possession  of  the  same,  a 
legal  presumption  arises  that  such  instrument,  if  a  will,  was 
destroyed  by  the  testator  or  lost  or  destroyed  by  the  party  hav- 
ing possession  of  the  same  when  such  is  traced  into  his  pos- 
session ;  and  such  presumption  is  against  the  party  having  pos- 
session when  the  will  is  not  produced.^^  The  pre- 
sumption is  rebuttable;  Bedfield  on  Wills.^''^  In  the 
matter  of  Page,  Administrator,^  2  ^j^g  cases  cited  were 
fully  reviewed,  the  court  holding  that  section  6  of  the 
statute  of  wills,  relating  to  the  proof  of  wills  when  an  attest- 
ing witness  is  dead,  applies  to  lost  or  destroyed  wills  the  same 
as  to  wills  produced  before  the  court.  In  this  country,  the 
ruling  is  general,  that  a  will  may  be  established  by  one,  only, 
of  the  attesting  witnesses,  if  he  can  testify  to  a  compliance 
with  the  statute  relating  to  its  execution.  This  does  not,  how- 
ever, dispense  with  the  necessity  of  the  will  being  attested  by 
two  witnesses;  and  this  rule  applies  equally  to  a  lost  or  de- 
stroyed will.  The  contents  of  a  lost  or  destroyed  will  may  be 
proved  by  the  testimony  of  a  single  witness.  The  declarations, 
written  or  oral,  made  by  a  testator  after  the  execution  of  his 
will,  are,  in  the  event  of  its  loss  admissible,  not  only  to  prove 
that  it  has  not  been  cancelled,  but  also  as  secondary  evidence 
of  its  contents.     Thus,  if  a  testator  were  to  say,  "when  I  am 

9 — 201  111.  268.  presumption   is    clearly   stated    in 

10— Moore  V.  Wright,  90  111.  470;  Betts    v.    Jackson,    6    Wend.    173; 

Williams  v.  Case,  79  111.  356;  Wing  Knapp    v.    Knapp,    10   N.    Y.    276; 

V.   Siierrer,  77   111.   200;    Rhode  v.  Chisholm  v.  Ben,  7  B.  Mon.  408; 

McLean,   101   111.   467;    Spencer  v.  Smock  v.  Smook,  11  N.  J.  Eq.  156. 

Boardman,    118   111.    553;    Redfield  11— P.  307,  Sec.  8;    p.   348,   Sec, 

on  Wills,   p.   307,   Sec.   8;    p.   348,  9,  and  notes. 

Sec.  9,  and  note  14.     The  rule  of  12— Page  Adm'r,  118,  576. 


70  THE  LAW  OF  ESTATES. 

dead,  you  will  find  my  will  in  such  a  place,"  or,  "I  have  left 
my  estate  of  Blackacre  to  my  son  John,"  or  "I  have  left  5,000 
pounds  sterling  to  my  daughter  Mary,"  such,  or  similar  dec- 
larations, would  be  receivable  in  evidence  to  show  that  the  will 
was,  so  far  as  was  known  to  the  testator,  in  existence  at  the 
time  they  were  made.^^ 

So  where  the  subscribing  witnesses  to  a  will  are  dead,  and 
there  is  no  formal  recital  in  the  attestation  clause  that  they 
"believed  the  testator  to  be  of  sound  mind  and  memory,"  and 
the  will  on  its  face  appears  to  be  regularly  executed,  and  the 
signatures  of  the  testator  and  the  witnesses  are  shown  to  be 
genuine,  and  there  is  proof  that  the  testator,  at  the  time  the 
will  was  made,  transacted  intelligently  the  ordinary  business 
affairs  of  life,  such  will  is  prima  facie  entitled  to  probate.^"* 

117.  What  necessary  to  show  when  vdll  offered  for  probate. 
In  the  court  of  probate  four  general  requisites  are  necessary 
to  entitle  a  will  to  probate.  First:  The  instrument  offered 
must  be  in  writing  and  signed  by  the  testator  or  testatrix,  or 
in  his  or  her  presence  by  some  one  under  his  or  her  direction. 
Second :  It  must  be  attested  by  two  or  more  credible  and  com- 
petent witnesses  and  two  witnesses  must  prove  that  they  saw 
the  testator  or  testatrix  sign  the  will  in  their  presence,  or  that 
he  or  she  acknowledged  the  same  to  be  his  or  her  act  and  deed. 
Third :  The  witnesses  must  swear  that  they  believed  the  testa- 
tor or  testatrix  to  be  of  sound  mind  and  memory  at  the  time 
of  signing  and  acknowledging  the  same.  Fourth:  That  the 
testator  was  21  years  of  age,  or  that  the  testatrix  was  18  years 
or  more  of  age  at  that  time ;  that  there  was  no  fraud,  compul- 
sion, undue  influence  or  improper  conduct  w^hen  the  will  was 
signed.     The  right  to  probate  the  will  is  not  dependent  upon 

13— Anderson  v.   Irwin,  101  111.  Vol.  3,  pp.  4026,  4035;  Vol.  4,  pp. 

413.     The  latter  case  establishes  a  1284,  1286;  Vol.  5,  p.  576,  and  cases 

lost  will  by  the   evidence   of   one  cited  by  the  authors  in  each  vol- 

witness   in   a  Court   of  Chancery,  ume;  Kurd's  R.  S.  of  111.,  1905,  pp. 

See     Starr    &     Curtis'    Annotated  2050,  2051. 

Statutes  of  Illinois,  with  Jones  &  14 — More  v.   More,   211   111.   271, 

Addington's    Supplements   thereto,  and  cases  reviewed  in  that  opinion. 


PROBATING  WILLS.  71 

the  belief  of  the  attesting  witnesses  formed  after  their  attesta- 
tion. The  will,  the  certificates  and  the  oath  of  the  subscribing 
witnesses,  make  a  prima  facie  case.^^  It  is  also  proper  to  show 
all  that  transpired  at  the  time  of  the  execution  of  the  will; 
the  acts  and  declarations  of  the  parties  participating  are  admis- 
sible as  of  the  res  gestae}^  No  collateral  attack  can  be  made, 
however,  upon  an  order  admitting  a  will  to  probate,^''' 

But  it  is  held  improper  to  put  the  following  interrogatories 
to  a  subscribing  witness,  viz. :  Whether  he  would  have  signed 
the  instrument  except  in  the  presence  of  the  testatrix;  and, 
whether  all  the  things  mentioned  in  the  attestation  clause  were 
complied  with?  Such  interrogatories  and  answers  should  be 
suppressed.i^ 

118.  Wills  to  remain  with  clerk — copies  evidence.  Section 
18  of  the  act  relating  to  wills  provides:  "All  original  wills, 
together  with  the  probate  thereof,  shall  remain  in  the  office 
of  the  clerk  of  the  county  court  of  the  proper  county;  and 
copies  of  the  record  of  the  same,  and  copies  of  the  exemplifica- 
tion of  foreign  wills  recorded  in  said  office  as  in  this  act  pro- 
vided, duly  certified  under  the  hand  of  the  clerk  and  the  seal 
of  said  court,  shall  be  evidence  in  any  court  of  law  or  equity 
in  this  state.i^ 

119.  Foreign  wills  admitted  to  probate — effect  of  wills 
proven  without  the  state.    Section  9,  chapter  148,  of  Wills  pro- 

15— Chapter  148,  entitled  Wills,  v.   Brown,  183  111.   46;    Waugh   v. 

Sec.  2,  Kurd's  R.   S.  of  111.,   1905.  Moan,  200  111.  298. 

See  Authorities    {Ante  116).     No-  18— Green  v.  Hitchcock,  222  111. 

ble's  Will,  124  111.  266;  Canatsey  v.  216. 

Canatsey,    130    111.    397;    Gould   v.  19— R.   S.   1845,  p.  540,   Sec.   16. 

Theological  Seminary,  189  111.  290;  Bliss  v.  Seeley,  191  111.  471;  Harri- 

Critz  V.  Pierce,  106  111.  167;  Brice  son  v.  Wetherby,  ISO  111.  434;  Starr 

V.    Hall,   120    111.    597;    Waugh   v.  &  Curtis'  Annotated  Statutes  of  II- 

Moan,  200  111.  298.  linois,   with   Jones   &   Addington's 

16 — Cheney  v.   H.  F.   &  F.  Mis-  Supplements    thereto.    Vol.    3,    p. 

slonary  Society,  28  111.  App.  621.  4045;  Vol.  5,  p.  579,  and  cases  cited 

17 — Memorial  Home  v.  Price,  by  the  author  in  each  volume; 
195  111.  282;  Keister  v.  Keister,  178  Kurd's  R.  S.  of  111.,  1905,  same  sec- 
Ill.  106;  Chicago  Title  &  Trust  Co.  tion  and  chapter,  p.  2053. 


72  THE  LAW  OF  ESTATES. 

vides:  "All  Avills,  testaments  and  codicils,  or  authenticated 
copies  thereof,  proven  according  to  the  laws  of  any  of  the 
United  States,  or  the  Territories  thereof,  or  of  any  country  out 
of  the  limits  of  the  United  States,  and  touching  or  concerning 
estate  within  this  State,  accompanied  with  the  certificate  of 
the  proper  officer  or  officers  that  said  will,  testament  or  codicil, 
or  copy  thereof  was  duly  executed  and  proved,  agreeable  to 
the  laws  and  usages  of  that  state  or  country  in  which  the  same 
was  executed,  shall  be  recorded  as  aforesaid,  and  shall  be  good 
and  available  in  law,  in  like  manner  as  wills  made  and  exe- 
cuted in  this  state."  A  certificate  of  probate  in  New  York, 
held  sufficient,  and  will  admitted  in  evidence,  though  not  filed 
in  probate  court,  and  not  recorded  in  this  state. ^o 

120.  Will  to  be  recoirded — notice— certified  copies  evidence. 
Section  33,  chapter  30,  entitled  "Conveyances,"  provides: 
"All  original  wills  duly  proved,  or  copies  thereof  duly 
certified,  according  to  law,  and  exemplifications  of  the  record 
of  foreign  wills  made  in  pursuance  of  the  law  of  congress  in 
relation  to  records  in  foreign  states,  may  be  recorded  in  the 
same  office  where  deeds  and  other  instruments  concerning  real 
estate  may  be  required  to  be  recorded;  and  the  same  shall  be 
notice  from  the  date  of  filing  the  same  for  record  as  in  other 
cases,  and  certified  copies  of  the  record  thereof  shall  be  evi- 
dence to  the  same  extent  as  the  certified  copies  of  the  records 
of  deeds.  "21 


20 — Newman  v.  Willetts,  52  111.  S.  of  Illinois,  1905,  same  sections 

98;  Shepard  v.  Carrill,  19  111.  313;  and  chapter,  p.  2052. 

Gardner  V.  Ladue,  47  111.  21;  Corri-  21 — Starr    &    Curtis'    Annotated 

gan  V.  Jones,  14  Colo.  311;    Sees.  Statutes  of  Illinois,  with  Jones  & 

9,  10,  Chapt  148  "Wills;"  Starr  &  Addington's    Supplements   thereto. 

Curtis'  Annotated  Statutes  of  Illi-  Vol.  1,  p.  954,  Vol.  4,  p.  258,  and 

nois,    with    Jones    &    Addington's  cases     cited     in     volumes     noted. 

Supplements   thereto.    Vol.    3,    pp.  Kurd's  R.  S.  of  111.,  1905,  same  sec- 

4040,   4041;    Vol.    4,    p.    1289,   and  tion  and  chapter,  p.  470. 
cases  cited  in  volumes;  Kurd's  R. 


PROBATING  WILLS.  73 

121.  Authentication  of  foreign  will.  This  must  be  as  pre- 
scribed by  act  of  congress,  and  approved  agreeably  to  the  laws 
of  probate.22 

122.  Notice  of  foreign  will.  To  persons  acquiring  interests 
adverse  to  devisees,  is  dependent  upon  observance  of  statutory 
formalities.  It  will  not  be  notice  unless  authentication  and 
certification  is  as  provided  by  statute.  The  certificate  to  for- 
eign will  should  state,  that  it  is  duly  executed  and  proved 
agreeable  to  laws  of  state  of  probate.-^  The  words  in  section  9  of 
the  statute  of  this  state  "shall  be  recorded  as  aforesaid,"  evi- 
dently refer  to  the  recording  by  the  clerk  of  the  county  court  in 
a  book  to  be  provided  by  him,  as  stated  in  section  2  of  the  Stat- 
ute of  Wills.  On  February  14,  1857,  an  act  of  the  legislature 
was  passed,  which  with  slight  changes  and  additions,  appears 
now  in  the  Revised  Statutes  as  section  33  of  the  act  in  regard 
to  conveyances,  to-wit:  "The  same  shall  be  notice  from  date 
of  filing  the  same  for  record  as  in  other  cases,"  were  intended 
to  have  some  meaning.  If  "exemplifications  of  the  record  of 
foreign  wills  made  in  pursuance  to  the  law  of  congress  in  rela- 
tion to  records  in  foreign  states,"  operate  as  notice  from  the 
date  of  filing  the  same  for  record  in  the  recorder's  office  of  a 
county  in  this  state,  then  third  persons,  acquiring  interests  in 
land  adverse  to  the  devisees  in  such  wills,  cannot  be  said  to 
have  constructive  notice  of  such  wills  when  such  exemplifica- 
tions are  not  so  recorded.^* 

123.  Foreign  wills  admitted  to  probate.  Section  10  of  the 
act  relating  to  wills,  chapter  148,  provides:  "All  wills,  testa- 
ments and  codicils,  which  heretofore  have  been,  or  shall  here- 
after be  made,  executed  and  published  out  of  this  state  may  be 
admitted  to  probate  in  any  county  in  this  state  in  which  the 

22 — Harrison   v.    Wetherby,   180  Harrison  v.  Wetherby,  ISO  111.  438. 

111.   438;    Bliss  v.   Seeley,   191   111.  (Note. — In  Bliss  v.   Seeley,  supra, 

473;  Lewis  v.  Barnhart,  145  U.  S.  the  statute  of  Illinois  is  construed 

79.  and  applied,  j 

23 — Bliss    V.    Seeley,    191,    473;         24 — See  Statute  quoted  and  cited 

Lewis  V.  Barnhart,  145  U.  S.  79;  (Ante  120). 


71  THE  LAW  OF  ESTATES. 

testator  may  have  been  seized  of  lands,  or  other  real  estate, 
at  the  time  of  his  death,  in  the  same  manner^  and  upon  like 
proof  as  if  the  same  had  been  made,  executed  and  published 
in  this  state,  whether  such  will,  testament  or  codicil  has  first 
been  probated  in  the  state,  territory  or  country  in  which  it  was 
made  and  declared  or  not.  And  all  original  wills,  or  copies 
thereof,  duly  certified  according  to  law,  or  exemplifications 
from  the  records  in  pursuance  to  the  law  of  Congress  in  rela- 
tion to  records  in  foreign  states,  may  be  recorded  as  aforesaid, 
and  shall  be  good  and  available  in  law,  the  same  as  wills  proved 
in  such  county  court.  "^^ 

124.  Place  of  probate.  Section  11  of  the  act  relating  to 
wills  provides:  "If  any  testator  or  testatrix  shall  have  a  man- 
sion house  or  known  place  of  residence,  his  or  her  will  shall 
be  proved  in  the  county  court  of  the  county  wherein  such 
mansion  house  or  place  of  residence  shall  be.  If  he  or  she  has 
no  place  of  residence,  and  lands  be  devised  in  his  or  her  will, 
it  shall  be  proved  in  the  court  of  the  county  wherein  the  lands 
lie,  or  in  one  of  them,  where  there  shall  be  land  in  several 
different  counties ;  and  if  he  or  she  have  no  such  known  place 
of  residence,  and  there  be  no  lands  devised  in  such  will,  the 
same  may  be  proved  either  in  the  county  where  the  testator 
or  testatrix  shall  have  died,  or  that  wherein  his  or  her  estate, 
or  the  greater  part  thereof,  shall  lie.^s 

25— See  "Conveyance  Act,  Chapt.  26— Starr   &    Curtis'    Annotated 

30.  Sees.  33-35.     (Ante  120  of  this  Statutes  of  Illinois,  with  Jones  & 

worlc.)      See  also  Starr  &  Curtis'  Addington's    Supplements   thereto. 

Annotated     Statutes     of     Illinois,  Vol.   3,   p.   4041,  and   cases   cited; 

with  Jones  &  Addington's  Supple-  Kurd's  R.  S.  of  111.,  same  section 

ments   thereto.       Vol.    3,   p.   4040.  and    chapter,    p.    2052;     Wild    v. 

Kurd's  R.  S.  of  111.,  1905,  same  sec-  Sweeney,  84  111.  243. 
tions  and  chapt,  p.  2052. 


CHAPTER  VII 

CONTEST  OF  WILL 


Sec. 

125.  Will      contested,       statutory 
duty  defined. 

126.  The  statute  construed. 

127.  Section     seven,     a    grant    of 

jurisdiction. 
127a.  Luther   v.   Luther. 

128.  Section    construed     to    be    a 

statute  of  repose. 


Sec. 

129.  Appeals  from  order  allowing 

or  refusing  probate  of  will. 

130.  The  practice  in  appeals. 

131.  The  burden  of  proof.     Prac- 

tice, evidence. 

132.  Concurrent     and     cumulative 

remedies  are  not  forbidden. 


Sec.  125.  Will  contested.  Section  7  of  chapter  148,  entitled 
"Wills,"  is  as  follows:  "When  any  will,  testament  or  codicil 
shall  be  exhibited  in  the  county  court  for  probate  thereof  as 
aforesaid,  it  shall  be  the  duty  of  the  court  to  receive  the  pro- 
bate of  the  same  without  delay  and  to  grant  letters  testa- 
mentary thereon  to  the  person  or  persons  entitled,  and  to  do 
all  other  needful  acts  to  enable  the  parties  concerned  to  make 
settlement  of  the  estate  at  as  early  day  as  shall  be  consistent 
with  the  right  of  the  respective  persons  interested  therein: 
Provided,  however,  that  if  any  person  interested  shall,  within 
one  (1)  year  after  the  probate  of  any  such  will,  testament  or  co- 
dicil in  the  county  court  as  aforesaid,  appear  and  by  his  or  her 
bill  in  chancery  contest  the  validity  of  the  same,  an  issue  at  law 
shall  be  made  up  whether  the  writing  produced  be  the  will  of 
the  testator  or  testatrix  or  not,  which  shall  be  tried  by  a  jury 
in  the  circuit  court  of  the  county  wherein  such  will,  testament 
or  codicil  shall  have  been  proven  and  recorded  as  aforesaid, 
according  to  the  practice  in  courts  of  chancery  in  similar  cases ; 
but  if  no  such  person  shall  appear  within  the  time  aforesaid, 
the  probate  shall  be  forever  binding  and  conclusive  on  all  of 
the  parties  concerned,  saving  to  infants  or  non  compos  mentis 
the  like  period  after  the  removal  of  their  respective  disabilities. 

75 


76  THE  LAW  OF  ESTATES. 

And  in  all  such  trials  by  a  jury  as  aforesaid  the  certificate 
of  the  oath  of  the  witnesses  at  the  time  of  the  first  probate, 
shall  be  admitted  as  evidence  and  to  have  such  weight  as  the 
jury  shall  think  it  may  deserve.  "^ 

This  statute  compared  with  former  statute,  is  changed  in 
punctuation  slightly;  also  the  words  "rights"  to  "right,"  the 
singular  being  now  used.  The  material  change,  however,  is 
that  the  present  statute  provides  that  a  bill  in  chancery  to  con- 
test must  be  filed  in  one  year  instead  of  two  as  formerly. 

126.  The  statute  construed.  It  was  settled  in  People  v. 
Knickerbocker,-  as  applied  to  the  court  of  probate,  that 
the  probate  of  a  will  is  a  judicial  act,  and  that  the  words 
"without  delay"  does  not  require  the  probate  court  to  proceed 
immediately,  but  without  unnecessary  delay  to  grant  letters 
testamentary.  In  McDonald  v.  White,^  the  terms  "par- 
ties interested"  mean  those  upon  whom  the  law  imposes 
the  duty  of  settling  the  estate,  and  the  words  "interested 
therein"  mean  those  interested  in  the  settlement  of  the  estate, 
that  is,  those  who  will  be  directly  affected,  in  a  pecuniary  sense, 
by  its  settlement ;  and  the  words,  ' '  any  person  interested, ' '  can 
only  mean  one  of  the  same  class  of  persons.  The  interest  must 
be  a  direct  pecuniary  interest  affected  by  the  probate  of  the 
will,  for  the  reference  is  to  an  existing  interest,  and  not  to  an 
interest  which  may  be  subsequently  acquired,  since,  in  that 
event,  the  language  would  have  been,  "or  any  one  who  shall 
within  (one)  year,  be  interested,  and  appear,  and  by  his  or 
her  bill  in  chancery,"  etc.    That  this  is  the  correct  meaning  of 

1 — As  amended  by  laws  of  1903,  inclusive,  and  cases  cited;  Kurd's 

p.  355.    Approved  May  15,  1903.  In  R.  S.  of  111.,  1905,  same  section  and 

force  July  1,   1903.     See   Starr   &  chapter,  pp.  2051.  2052.     See  also 

Curtis'  Annotated  Statutes  of  Illi-  the     following     cases,     construing 

nois,    with    Jones    &    Addington's  and  applying  the  statute  in  ques- 

Supplements    thereto.    Vol.    3,    pp.  tion:  Davis  v.  Upson,  209  111.  206; 

4035  to  4039,  and  cases  cited;  Vol.  Sharp  v.   Sharp,  213  111.  332;   Da- 

4,  pp.  1286  to  1289  inclusive,  and  vidson  v.  Redden,  214  111.  61. 

cases  cited;  Vol.  5,  pp.  576  to  578  2—114  111.  539. 

3—130  111.  493. 


CONTEST  OF  WILL.  77 

the  words  is  further  manifested  by  reference  to  section  14  of 
the  same  chapter,  where  it  is  provided  that  "appeals  may  be 
taken  from  the  order  of  the  county  court,  allowing  or  disallow- 
ing any  will  to  probate,  to  the  circuit  court  of  the  same  county, ' ' 
by  any  person  interested  "in  such  will,  in  the  same  manner  as 
appeals  may  be  taken  from  justices  of  the  peace,  etc.,"  and 
precisely  the  same  reasons  exist  why  the  legislature  should 
restrict  the  right  of  contest  under  section  7,  as  the  right  of 
appeal  under  section  14." 

The  time  fixed  in  the  statute  for  filing  bill  to  contest  will 
is  held  to  be  jurisdictional ;  and  the  probate  of  a  will  is  not  com- 
plete while  an  appeal  from  the  order  admitting  or  refusing  a 
will  to  probate  is  pending.^ 

127.  Section  7  construed  a  grant  of  jurisdiction.  The  sev- 
enth section  of  the  statute  of  wills,  allowing  the  contest  of 
wills  by  bill  in  chancery  at  any  time  (fixed  by  the  statute) 
after  their  probate,  is  held  upon  construction  not  to  be  a  stat- 
ute of  limitation,  but  a  mere  grant  of  jurisdiction,  to  be  exer- 
cised only  in  case  it  is  invoked  within  the  time  prescribed  by 
the  statute.  Jurisdiction  conferred  extends  to  an  investiga- 
tion of  every  ground  upon  which  the  validity  of  the  will  may 
be  assailed.  Courts  of  equity  in  the  state  of  Illinois  have  no 
jurisdiction  to  contest  a  will  or  impeach  a  judgment  of  pro- 
bate, except  such  jurisdiction  has  been  conferred  by  statute.^ 

4— O'Brien  v.  Bonfield,  220  111.  amended  May  15,  1903,  will  give 
219.  the    legislative   enactments    as    to 


5— Ryhner  v.  Frank,  105  111.  326 
Luther  v.  Luther,  122  111.  558 
Spaulding  v.  White,  173  111.  130 
Wheeler  v.  Wheeler,  134  111.  522 
McNulta  V.  Lockridge,  137  111.  270 
Jele  V.  Lemberger,  163  111.  338 
Wright    V.    Simpson,    200    111.    63 


the  section  of  the  statute  in  ques- 
tion. The  section  of  the  statute  as 
originally  passed  was  taken  from 
the  Kentucky  Statute  founded  up- 
on the  early  Virginia  Statute; 
therefore  since  1829,  this  section 
of  the  statute  (now  known  as  sec- 


Chicago  Title  &  Trust  Co.  v.  Brown,  tion  7  of  the  Act  relating  to 
183  111.  42.  This  statute  first  passed  "Wills"),  has  been  the  law  of  Illi- 
in  1829.  (Laws  of  1829,  p.  193,  nois.  The  amendments  being  but 
Sec.  5,  Statutes  of  1845,  Chapt.  109,  slight  and  not  affecting  the  gen- 
Sec.  6;  Statutes  of  1872,  Chapt.  148,  eral  terms  of  the  law.  See  Rigg 
Sec.  7;    amended   April   11,  1895;  v.  Wilton,  13  111.  15;  Will  v.  Will, 


78  THE  LAW  OF  ESTATES. 

Under  the  rule  of  construction  applying  to  a  statute  of  another 
state,  made  a  part  of  our  laws,  this  section  and  the  amendments 
thereto  have  often  been  construed.  And  the  construction  given 
is  that  placed  upon  the  law  by  the  courts  of  the  state  from 
which  the  statute  was  taken.® 

127a.  In  Luther  v.  Luther,'^  Mr.  Justice  Magruder,  in 
a  very  able  and  elaborate  opinion  construing  this  section  of  the 
statute,  says:  "In  England  the  probate  of  wills  of  personal 
property  was  exclusively  vested  in  the  ecclesiastical  courts. 
There  were  two  modes  of  probate,  one  ex  parte,  the  other  inter 
partes.  One  was  proof  of  the  will  *'in  common  form";  the 
other  was  proof  thereof  *'in  solemn  form"  or  "per  testes.'' 
When  a  will  was  proven  "in  common  form,"  it  was  taken 
before  the  judge  of  the  proper  court  of  probate,  and  the 
executor  produced  witnesses  to  prove  it  to  be  a  will  of  the 
deceased,  without  citing  or  giving  notice  to  the  parties  inter- 
ested ;  it  was  admitted  to  probate  in  the  absence  of  such  parties. 
When,  however,  a  will  was  proven  "in  solemn  form,"  it  was 
done  upon  petition  of  the  proponent  for  a  hearing,  and  all  such 
persons  as  had  an  interest,  such  as  the  widow,  heirs,  next  of 
kin,  etc.,  were  notified  and  cited  to  be  present  at  the  probat- 
ing of  the  testament;  interrogatories  were  propounded  to  the 
witnesses  by  those  producing  the  will  and  by  the  adverse  party. 
The  executor  of  the  will,  proved  "in  common  form,"  might 
at  any  time  within  thirty  years  be  compelled  by  a  person,  hav- 
ing an  interest,  to  prove  it  per  testes  ' '  in  solemn  form. '  '^  In  Eng- 

5   Litt.    (Ky.)    273;    12    Henning's  Streeter    v.    People,    69    111.    597; 

Virginia  Statutes  at  Large,  p.  142,  Gage  v.  Smith,  79  111.  219;  Martin 

pp.    454,   455;    1   Little's   Laws   of  v.   Judd,   81   111.   488;    Hopkins  v. 

Kentucky,    p.    611,    Sec.    293    and  Medley,  97  111.  402;  Luther  v.  Lu- 

notes.     For    complete   history    of  ther,  122  111.  558. 

statutes  in  question  see  Luther  v.  7 — 122  111.  558. 

Luther,  122  111.  558,  and  its  appli-  8 — 1  Williams  on  Executors  (6th 

cation.  Trust  Co.  v.  Brown,  183  111.  Am.  Ed.),  foot  pp.  325,  333,  334 

42;    O'Brien   v.    Bonfield,    220    111.  Waters   v.    Stickney,   12    Allen   1 

219.  Redmond  v.   Collins,   4   Dev.   430 

6 — Campbell  v.  Quinn,  3   Scam.  Etheridge  v.  Corbrew,  3  Jones  14. 

(111.)   288;  Ring  v.  Wilton,  13  111.  iVofe.— The    following    cases,    in 

15;  Grattan  v.  Grattan,  18  111.  162;  addition  to  those  above  cited,  show 


CONTEST  OF  WILL.  79 

land  there  was  no  court  for  the  probate  of  wills  of  realty.  The 
validity  of  the  will  was  decided  incidentally  in  controversies  con- 
cerning rights  of  property  claimed  under  or  against  it.  These 
controversies  were  settled  in  the  appropriate  jurisdiction.  The 
title  of  the  heirs  was  in  its  nature  legal,  and  might  be  asserted  in 
an  action  of  ejectment.  The  statute  of  Virginia,  upon  which  our 
own  and  that  of  Kentucky  are  based,  provided  for  the  probate 
*'in  common  form"  or  ex  parte  of  will  of  both  personalty  and 
realty,  and  also  extended  the  privilege  of  requiring  a  re-probate 
"in  solemn  form"  to  wills  of  realty  as  well  as  those  of  person- 
alty. Such  re-probate  was  to  be  asked  within  five  years  instead 
of  three  years  (under  the  act  of  1872,  in  force  in  Illinois  at  the 
time  of  this  opinion).  Those  to  be  cited  were  the  persons  inter- 
ested in  sustaining  rather  than  those  interested  in  setting 
aside  the  will.  The  contest  was  to  be  decided  in  a  court 
of  chancery  through  the  instrumentality  of  a  jury  rather 
than  in  the  original  court  of  probate.  The  words  of 
section  7  of  our  act  in  regard  to  wills:  "When  any  will,  etc., 
shall  be  exhibited  in  the  county  court  for  probate,  as  aforesaid^ 
it  shall  be  the  duty  of  the  county  court  to  receive  probate  of 
the  same  without  delay,"  refers  back  to  section  2  of  the  act. 
Section  2  provides  for  the  ex  parte  proof  of  wills  on  the  testi- 
mony of  the  attesting  witnesses,  which  is  analogous  to  the 
probate  in  England  "in  common  form."  The  subsequent  pro- 
ceedings by  bill  in  equity,  imder  section  7,  to  contest  the  valid- 
ity of  the  will,  is  analogous  to  the  probate  "in  solemn  form" 
by  the  executor  upon  being  cited  in  by  the  next  of  kin.    Both 

the  American  Courts  retain  the  13  Ga.  171;  Kinnard  v.  Riddle- 
practice  of  the  English  court  in  re-  hoover,  3  Rich.  (S.  C.)  258;  Noyes 
quiring  probate  and  re-probate  in  v.  Barber,  4  N.  H.  406;  George  v. 
common  form  and  solemn  form.  George,  47  id.  44;  Wall  v.  Wall,  30 
Colier  V.  Idley,  1  Bradf.  94;  Camp-  Miss.  91;  Hamberlin  v.  Terry,  7 
hell  V.  Logan,  2  id.  90;  Proctor  v.  Howe  (Miss.)  148;  Cowden  v.  Dob- 
Wanamaker,  1  Barb.  Ch.  302;  Gib-  bins,  5  S.  &  M.  82;  Martin  v.  Per- 
son V.  Lane,  9  Yerg  (Tenn.)  475;  kins,  56  Miss.  204;  Tucker  v. 
Townsend  v.  Townsend,  4  Coldw.  Whitehead,  58  id.  762;  Barksdale 
(Tenn.)    70;    Brown  v.  Anderson,  v.  Hopkins,  23  Ga.  332;  Hubbard  v. 

Hubbard,  7  Ore.  42. 


80  THE  LAW  OF  ESTATES. 

stages  of  the  proceedings,  however,  differ  from  the  former 
English  probate  in  that  they  extend  to  the  real  estate  as  weH 
as  the  personal  property.^ 

128.    Section  7  is  construed  to  be  a  statute  of  repose.    In  the 

case  of  Chicago  Title  and  Trust  Co.  v.  Brown,^^  a  petition 
was  filed  in  the  probate  court,  seeking  to  set  aside  the  probate 
of  a  will  in  that  court  seven  and  one-half  years  after  the  same 
was  admitted  to  probate.  On  page  50  of  the  opinion,  speaking 
of  the  exercise  of  equitable  jurisdiction  by  probate  courts, 
say:  "Conceding  this  to  be  true,  and  treating  the  proceed- 
ing instituted  by  appellees  as  a  proceeding  in  the  probate  court 
in  chancery,  it  cannot  be  sustained,  because  the  jurisdiction 
of  the  court  was  not  invoked  within  the  time  prescribed  by  the 
statute.  If  the  probate  court  is  clothed  with  equitable  jurisdic- 
tion in  a  case  of  this  character,  that  jurisdiction  must  be  exer- 
cised in  the  same  way  and  within  the  same  time  that  the  cir- 
cuit court  might  entertain  a  bill  had  one  been  filed  in  that 
court,"  page  51.  The  act  confers  jurisdiction  on  a  court  of 
equity,  provided  the  aid  of  the  court  shall  be  invoked  within 
a  specified  time.  "While  the  act  is  one  conferring  jurisdiction, 
yet  it  may  also  be  regarded  as  a  statute  of  repose."  In  view 
of  the  large  quantity  of  real  estate  transmitted  annually  by 
will,  it  is  a  question  of  great  public  importance  whether  the 
probate  of  a  will  shall  remain  open  for  contest  (three  years) 
as  provided  by  the  statute,  or  whether  the  time  shall  remain 
at  the  option  of  the  party  who  may  seek  to  institute  proceed- 
ings to  contest.  Doubtless  the  importance  of  the  question 
was  duly  appreciated  and  considered  by  the  legislature,  as  the 

9— McArthur  v.  Scott,  113  U.  S.  Gratt.  18;  Connolly  v.  Connolly,  32 

340.  id.   657;    Rogers  v.   Thomas,   1   B. 

10—183  111.  46.    Section  7  of  the  Mon.  390;  Bradford  v.  Andrews,  20 

Illinois   Act,    has   been    construed  Ohio  St.  208;   Mears  v.  Mears,  15 

a  statute  of  limitations.     Heirs  of  id.  96;  McArthur  v.  Scott,  113  U.  S. 

Critz  V.  Pierce,  106  111.  167;  Brown  340;  Noyes  v.  Barker,  4  N.  H.  406, 

V.  Riggin,  94  id.  560;  Well's  Will,  also  construed  a  grant  of  jurisdic- 

5  Litt.  273;    Coalters  v.  Bryan,   1  tion    (ante  127),  and  cases  there 

cited. 


CONTEST  OF  WILL.  81 

time  within  which  a  contest  might  be  instituted  by  bill  was 
first  five  years,  then  reduced  to  three,  then  to  two,  and  now  to 
one  year.^^ 

129.  Appeals  from  the  order  allowing  or  refusing  probate 
of  will.  Section  13,  chapter  148,  entitled  ''Wills,"  provides: 
"That  when  the  probate  of  a  will  shall  have  been  refused  and 
an  appeal  shall  have  been  taken  from  the  order  or  decision  of 
the  court,  refusing  to  admit  such  will  to  probate,  into  the  cir- 
cuit court,  etc.,  the  party  seeking  probate  of  the  will  may  sup- 
port the  same,  on  hearing  in  the  circuit  court,  by  any  evidence 
competent  to  establish  a  will  in  chancery ;  and  in  case  probate 
is  allowed,  the  will  shall  be  admitted  to  probate,  liable,  how- 
ever, to  be  subsequently  contested,  as  provided  in  case  of  wills 
admitted  to  probate  in  the  first  instance,  "^^  Under 
section  14  of  the  act  entitled  wills,  authorizing  ap- 
peals to  be  taken  from  the  order  of  the  county  court,  allowing 
or  disallowing  any  will  to  probate,  into  the  circuit  court,  of  the 
same  county,  by  any  person  interested  in  the  will,  in  the  same 
time  and  manner  as  appeals  may  be  taken  from  justices  of  the 
peace,  except  that  the  appeal  bond  and  security  may  be  ap- 
proved by  the  clerk  of  the  county  court;  and  the  trial  of  such 
appeal  shall  be  de  novo}^ 

130.  The  practice  in  appeals.    It  is  the  practice  to  try  ap- 
peals under  both  sections  of  the  statute  cited,  by  jury.^'*     But 

11 — And  affirming  the  opinion  in  R.    S.   of   III,,   1905,   same   section 

Chicago     Title     &     Trust    Co,     v,  and   chapter,   p.   2053,       See,   also 

Brown,  183   111,   46;    Davis  v.  Up-  O'Brien  v,  Bonfield,  220  111.  219. 
son,  209  111.  206;   Sharp  v.  Sharp,         13— Starr    &    Curtis'    Annotated 

213   111,   332;    O'Brien  v.  Bonfield,  Statutes  of  Illinois,  with  Jones  & 

220  111.  219.  Addington's    Supplements   thereto, 

12— Starr    &    Curtis'    Annotated  Vol.  3,  p.  4043;  Vol.  4,  p.  1290;  Vol. 

Statutes  of  Illinois,  with  Jones  &  5,  p.  579,  and  cases  cited  in  each 

Addington's    Supplements   thereto,  volume  under  section  in  question; 

Vol.  3.  pp.  4042,  4043;   Vol.  4,  pp.  see  also  Kurd's  R.  S.  of  III.,  1905. 

1289,  1290;  Vol.  5,  pp.  578,  579,  and  p.  2053,  same  statute,  chapter  79, 

cases  cited  in  foot  notes  to  section  par.   115,   p.   1286. 
of  statute  in  each  volume;  Kurd's        14 — Walker  v.  Walker,  2  Scam. 
6 


82  THE  LAW  OF  ESTATES. 

by  consent  circuit  court  instead  of  trying  case  de  novo  may  try 
case  on  record  of  evidence  heard  in  probate  court.^^  Probate 
of  will  is  not  complete  while  appeal  is  pending.!^ 

131.  The  burden  of  proof  is  on  the  party  affirming  the 
validity  of  the  will,  he  having  the  right  to  open  and  close  the 
case.i  7 

On  appeal  to  circuit  court  from  order  admitting  will  to  pro- 
bate, it  is  proper  in  circuit  court  to  exclude  all  evidence  of 
execution  of  will  and  sanity  of  testator,  except  testimony  of 
subscribing  witnesses  to  will.^^  An  appeal  from  a  judgment  ad- 
mitting a  will  to  probate  does  not  broaden  the  inquiry,  so  as  to 
entitle  a  party  to  try  question  of  sanity  and  undue  influence  be- 
fore a  jury;  if  a  party  so  interested  desires  to  broaden  the  in- 
quiry and  challenge  the  mental  capacity  of  the  testator  to  exe- 
cute the  instrument,  or  show  he  was  unduly  or  improperly 
influenced  to  execute  it,  and  to  have  such  question  tried  by  a 
jury  he  must  resort  to  a  bill  in  chancery.^ ^  A  clear  prepon- 
derance is  essential  to  reverse  a  judgment  admitting  a  will  to 
probate.2o  The  appeal  must  be  taken  within  the  time  prescribed 
by  statute.2i  The  person  interested  alone  has  the  right  of  ap- 
peal, and  he  must  be  one  having  a  vested  as  distinguished  from 
a  contingent  interest.22 

On  appeal  to  circuit  court  refusing  probate  of  will  under 
section  13,  aforesaid,  appellant  may  prove  execution  of  will 
and  sanity  of  testator  by  any  legitimate  evidence ;  such  appel- 

(111.)  291;  Schenck  v.  Schenck,  80  256;    Crowley  v.   Crowley,   80   111. 

111.    App.     617;     White    Memorial  469;   Heirs  of  Critz  v.  Pierce,  106 

Home  V.  Price,  195  111.  282.  111.  167;  Brice  v.  Hall,  120  111.  597; 

15— Doran  v.  Mullen,  78  111.  342.  Thompson  v.  Owen,  174  111.  232. 

16 — O'Brien  v.  Bonfield,  220  111.  19 — Clausennius  v.  Clausennius, 

219.  179  111.  545. 

17— Brooks  v.  Barrett,  17  Pick.  20— 7n  re  Estate  of  Kohley,  200 

94;    Potter  v.  Potter,  41   111.   801;  111.  195. 

Hollaway  v.  Galloway,  51  111.  159;  21 — Wright  v.  Simpson,  200  111. 

Tayor  v.  Cox,  153  111.  22;  Bevelotv.  63. 

Lester,  153  111.  625 ;  In  re  Estate  of  22 — People  v.  McCormick,  201  111. 

Kohley,  200  111.  192.  313. 

18 — Anderson   v.   Black,   43   111. 


CONTEST  OF  WILL.  83 

lant  is  not  limited  to  testimony  of  attesting  witnesses.^^  Attes- 
tation clause  by  witness  is  competent  upon  appeal  from  order 
refusing  probate,  in  connection  with  testimony  of  such,  witness. 
And  the  impeachment  of  attesting  witness  by  proponent,  is  com- 
petent.24 

On  appeal  admitting  will  to  probate,  the  contestants  may  in- 
troduce any  competent  evidence  for  the  purpose  of  invalidating 
the  willj  upon  the  ground  of  fraud  or  other  improper  conduct ; 
but  the  fact  that  the  testatrix  was  in  a  comatose  condition  at 
the  time  it  is  claimed  she  signed  the  will  cannot  be  shown  by 
witnesses  other  than  the  subscribing  witnesses  upon  an  appeal 
admitting  will  to  probate.^^ 

132.    Concurrent  and  cumulative  remedies  are  not  forbidden. 

In  Wright  v.  Simpson-^  it  is  said:  Appellee  was  not 
precluded  from  filing  her  petition  to  set  aside  the  order  probat- 
ing the  will  by  the  fact,  that  theretofore  on  May  1,  1901,  she  had 
filed  a  bill  in  chancery  to  set  aside  the  probate  of  the  will. 
''Concurrent  and  cumulative  remedies  are  not  forbidden.^^  The 
pendency  of  the  bill  in  chancery  to  set  aside  the  probate  of  the 
will  does  not  operate  to  abate  this  petition  to  the  county  court  to 
set  aside  such  probate.  If  the  petition  to  set  aside  the  probate 
fails,  then  the  case  begun  by  the  filing  of  the  bill  in  chancery 
may  proceed.  If,  however,  the  proceeding  by  petition  to  set 
aside  the  probate  of  the  will  succeeds,  the  proceeding  by  bill 
in  chancery  is  unnecessary.  The  proceedings  by  petition  to 
set  aside  the  probate  is  addressed  to  the  county  court,  and  has 
reference  to  the  execution  of  the  will,  w'hich  is  a  matter  for  the 
determination  of  the  court.  The  proceedings  by  bill  in  chan- 
cery is  addressed  to  the  circuit  court,  and  requires,  under  the 

23 — Heirs  of  Critz  \.  Pierce,  106  24— Thompson  v.  Owen,  174  111. 

111.   167;  Thompson  v.  Owen,  174  111.  241. 

232;    Masonic    Orphans'    Home    v.  25 — Stuke  v.  Glacer,  223  111.  316. 

Gracy,  190  111.  97;  Gould  v.  Chica-  26—200  111.  63. 

go  Theological   Seminary,  189  111.  27 — 8  Am.  &  Eng.  Ency,  of  Law, 

285;    In  re  Estate  of  Kohley,  200  1st   ed.   p.    549,    and    cases    cited. 

111.  195;  In  re  Tobin,  196  111.  488;  Wright  v.  Simpson,  200  111.  63. 
In  re  Robinson  Will,  190  111.  95. 


84  THE  LAW  OF  ESTATES. 

statute,  the  empaneling  of  a  jury  for  the  purpose  of  trying  an 
issue  of  fact.  The  proceedings  in  the  county  court  to  set  aside 
the  probate  of  the  will  under  the  act  of  1897  is  to  a  large  extent 
a  proceeding  in  rem,  while  the  proceeding  by  bill  in  chancery 
in  the  circuit  court,  calling  for  the  intervention  of  a  jury  upon 
a  question  of  fact,  partakes  of  the  nature  of  a  proceeding  in 
personam.  It  is  well  settled  that  proceedings  in  rem  and  in 
personam  to  collect  the  same  demand,  or  to  accomplish  the 
same  object,  do  not  necessarily  interfere,  until  satisfaction  is 
obtained  or  the  object  secured  in  one  of  such  proceedings.^^  It 
is,  moreover,  a  well  settled  principle  of  law  that  "in  construing 
a  remedial  statute  its  language,  so  far  as  is  consistent  with  a 
fair  construction  of  the  law,  should  be  so  interpreted  as  to  pro- 
mote and  advance  the  remedy.  * '  The  act  of  1897  above  set  forth 
is  a  remedial  statute.  29 

28 — Am.  &  Eng.  Ency.  of  Law,        29 — McNulta   v.    Lockridge,   137 
1st  ed.  p.  549,  and  cases  cited.  111.  270. 


CHAPTER  VIII 


CONSTRUCTION  OF  WILLS 


Sec. 

133.  Powers     of     disposition     and 

limitations  thereon. 

134.  Particular    words    construed. 

135.  The  rule  governing  the  mean- 

ing of  words. 

136.  What  estate  conveyed;   words 

of  inheritance;    quantity  of 
interest. 

137.  Walker  v.  Pritchard. 

138.  The  rule  in  such  case. 

139.  Bibbens  v.  Potter. 

140.  West  V.   Fitz;    Giles   v.   Ans- 

low. 

141.  If   the   instrument   be   doubt- 

ful,   precatory    words    will 


Sec. 

not    be    construed    into    a 
declaration  of  trust. 

142.  The    doctrine    in    respect    of 

the  creation  of  trusts. 

143.  Devise   of  land    held    in    se- 

curity of  a  debt. 

144.  Estates  tail. 

145.  Devises  to  a  class. 

146.  Mather  v.   Mather. 

147.  Cheney  v.  Teese. 

148.  McCartney  v.  Osburn. 

149.  Widow's      renunciation     and 

election. 

150.  Widow  of   illegitimate   given 

whole  of  estate. 


Sec.  133.    Power  of  disposition  and  limitation  thereon.    The 

laws  in  force  at  the  date  of  the  execution  of  a  will  may  be  con- 
sidered in  determining  the  intention  of  the  testator ;  while  laws 
in  force  at  testator's  death  controls  rights  of  parties.^  The  power 
to  devise  by  will  may  be  enlarged  or  curtailed  by  the  legisla- 
ture.2  It  has  been  decided,  that  on  bill  for  partition  and  for 
construction  of  will,  calling  for  division  among  devisees,  a  decree 
in  such  partition  proceedings,  fixing  all  rights,  is  a  sufficient 
construction  of  a  will.3     The  statutory  award  to  widow  or  chil- 


1 — Carpenter  v.  Browning,  98  111. 
282. 

2— Emmert  v.  Hayes,  89  111.  11. 

3— Cowdry  v.  Hitchcock,  103  111. 
262.  See  also  sections  74,  76,  77, 
chapter  3.  "Administration  Act," 
Starr  &  Curtis'  Annotated  Statutes 
of  Illinois,  with  Jones  &  Adding- 
ton's  Supplements  theretb,  Vol.  1, 
pp.  310,  311,  313,  and  cases  cited; 


Vol.  4,  pp.  38,  39,  and  cases  cited; 
Vol.  5,  p.  19,  and  cases  cited.  See 
also  sections  10,  12,  chapters  41, 
"Dower  Act,"  Starr  &  Curtis'  An- 
notated Statutes  of  Illinois,  with 
Jones  &  Addington's  Supplements 
thereto.  Vol.  2,  pp.  1456  to  1462,  and 
cases  cited;  Vol.  2,  pp.  1464  to 
1467,  and  cases  cited;  Vol.  4,  pp. 
446,  447,  and  cases  cited;  Vol.  5,  p. 

85 


86  TPIE  LAW  OF  ESTATES. 

dren  is  a  limitation  upon  power  of  disposition  by  will.  Right  of 
dower,  and  right  of  surviving  wife,  and  estate  of  homestead  is 
statutory  limitation  upon  testator's  power  over  his  land  in  favor 
of  surviving  wife  and  children.  Under  statute  testator  may  dis- 
pose of  his  property  by  will  as  he  chooses,  and  select  the  objects 
of  his  bounty,  provided  always,  in  so  doing,  he  contravenes  no 
well  recognized  and  admitted  principle  of  public  policy,  or  rule 
of  clear  right.*  Express  words  of  limitation  are  not  necessary 
to  create  a  less  estate  than  a  fee;  and  upon  construction  of  a 
will,  such  limitation  may  appear  by  necessary  implication.^ 

134.  Particular  words  construed.  "Or"  construed  "and" 
where  the  devise  was,  "should  one  or  both  die  before  they 
should  arrive  at  the  age  of  twenty-one,  or  either  die  without 
heirs,  his  or  their  share  shall  be  equally  divided  with  my  chil- 
dren, and  the  surviving  one  of  the  two  grandchildren,  if  any;" 
because  the  estate  does  not  go  over  to  the  ulterior  devisee, 
unless  both  the  specified  events  happen;  and  this  rule  is  ap- 
plicable to  real  and  personal  estate.^  In  a  bequest  using  word 
"fee,"  but  making  bequest  over  on  death  of  donee,  the  word  as 
used  in  the  will,  held,  to  give  life  estate.'''  "Heirs"  and  "heirs 
at  law,"  these  words  are  construed  in  primary  sense,  unless 
context  shows  intention  to  use  words  in  different  sense.^  The 
word  "heir"  was  construed  "child"  to  carry  out  intention  of 
testator.^  In  Beacroft  v.  Strawn,  where  the  devise  or  conveyance 
is  to  a  person  and  the  children  of  his  body,  the  words  are  not 
technical  and  the  word  "children"  is  not  one  of  limitation 
but  of  purchase,  and  creates  a  remainder.  The  word  "chil- 
dren" is  primarilv.  a  word  of  purchase   and  is  not  to  be  con- 

180,  and  cases  cited.    See  also  sec-  566;  Hamlin  v.  United  States  Ex- 

tions  1,  2,  chapter  52,  "Exemption  press  Co.,   107  111.   443. 

Act,"  Starr  &  Curtis',  etc..  Vol.  2,  6— Kindig   v.   Deardorff,    39    111. 

pp.  1865  to  1873,  and  cases  cited;  300. 

Vol.  4,  pp.  614,  615,  and  cases  cited;  7— Hatfield  v.  Fowler,  60  111.  45. 

Vol.  5,  p.  257,  and  cases  cited.  8— Richards  v.  Miller,  62  111.  417; 

4— Emmert  v.  Hayes,  89  111.  11.  Bland  v.  Bland,  103  111.  11;   Fish- 

5 — Morrison  v.   Schorr,   197   111.  back  v.  Joesting,  183  111.  416. 

9—67  111.  28. 


CONSTRUCTION  OF  WILLS.  87 

Btrued  as  equivalent  to  "heirs"  in  the  absence  of  other  words 
or  circumstances  showing  it  to  have  been  used  in  that  sense.^** 

In  Bidgeway  v.  Underwood,^^  the  words  "inheriting" 
and  "inheritance"  construed,  referring  to  the  same  thing 
— the  distributive  share  of  the  proceeds  arising  from  the  sale 
of  the  land. 

In  Duryea  v.  Duryea,^^  in  general,  word  "survivor"  will 
be  construed  in  its  natural  sense,  but  to  carry  out  testa- 
tor's intention  it  will  be  read  as  synonymous  with  the  word 
"other."  The  word  "survive"  may  mean  to  continue  to  live 
beyond  a  specified  period,  event  or  condition.^' 

In  Mather  v.  Mather, '^'^  a  devise  of  "net  income"  of 
realty  and  personalty  to  children  for  life,  held,  to  require 
executors  to  retain  management.  In  Kennedy  v.  Kennedy, ^^ 
a  devise  of  "homestead"  held,  to  mean  devise  of  farm  on  which 
testator  lived,  and  not  statutory  estate  of  homestead. 

In  McCarthy  v.  Oshurn,'^^  the  testator  used  the  words,  "heirs 
of  H, "  meant  simply  the  children  of  H  "living  at  the  time  of 
said  division,"  in  connection  with  the  words  "heirs  of  H." 

In  Kelley  v.  Vigas,^'^  a  devise  was  made  to  a  class  of  persons 
named,  only  "heirs  at  law"  of  testator;  held,  it  was  necessary 
to  refer  to  the  statute  to  ascertain  who  constitute  the  class,  and 
the  statutes  providing  the  quantity  each  shall  take  must  also 
govern;  in  such  case  property  devised  will  be  divided  among 
heirs  as  in  case  of  intestacy. 

In  Arnold  v.  Alden,^^  it  is  held,  when  the  word 
"issue"  in  one  part  of  a  limitation  is  explained  by  the  word 
"children"  in  another,  it  will  be  inferred  that  the  testator 
intended  the  word  "issue"  to  denote  children.  It  is  only  where 
the  word  "issue"  is  not  qualified  or  explained,  that  it  is  con- 
strued to  include  grandchildren  as  well  as  children.    But  the 

10— Strawbridge  v.  Strawbridge,  14—103  111.  607. 

220  III.  61.  15—105  111.  350. 

11—67  111.  419.  16—118  111.  403. 

12—85  111.  41.  17—112  111.  242. 

13— Gary  v.  Stead,  220  111.  508.  18—173  111.  239. 


88  THE  LAW  OF  ESTATES. 

word  "children"  is  never  meant  where  the  word  "heirs"  ap- 
plies in  its  technical  sense.^^ 

In  Rose  v.  Eale,^^  the  words  "give  devise  and  bequeath," 
which  precede  the  description  of  the  real  estate,  refer  to  both 
real  estate  and  personalty,  as  do  also  the  words  "whilst  she 
remains  my  widow;"  pass  a  life  estate  in  both  real  and  per- 
sonalty, "whilst  she  remains  my  widow." 

In  Lancaster  v.  Lancaster, ^'^  the  words  "I  give  and  bequeath 
to  the  legal  and  direct  descendants — the  heirs  of  their  bodies 
begotten  and  their  heirs — of  my  eldest  brother  and  his  wife," 
construed  as  though  phrase,  "that  is  to  say"  had  followed 
word  "descendants." 

In  Thomas  v.  Miller, ^^  the  word  "estate"  was  held,  to  be 
broad  enough  to  pass  fee,  but  it  must  not  be  considered  as  doing 
60  generally.  In  Ingraham  v.  Ingraham,-^  the  words,  *  *  I  author- 
ize,"  used  in  connection  with  absolute  gift,  implies  creation  of 
trust. 

In  Gannon  v.  Paterson,^*  several  clauses  of  the  will 
were  construed  making  use  of  the  words,  "heirs,"  "issue" 
and  "children"  indiscriminately,  giving  such  words  the  com- 
mon and  popular  meaning  instead  of  their  strict  and  legal 
meaning.  The  court  holding,  when  such  use  of  those  words 
is  made  by  the  testator  the  court  is  warranted  in  reading  them 
interchangeably,  so  as  to  give  the  will  such  construction  as 
will  best  comport  with  the  intention  of  the  testator  as  drawn 
from  the  entire  instrument. 

In  Blakeslee  v.  Mans  field, "^^  the  words  "per  cent"  held,  to 
mean  parts  or  shares  as  distinguished  from  its  ordinary  mean- 
ing, to  wit,  "by  the  hundred." 

In  Fisher  v.  Fishbank,^^  the  word  "rest"  construed  "the 

19— Davis  V.   Sturgeon,  198  111.    proval,  Butler  v.  Huestis,   68   111. 

B22.  594;    Summers  v.   Smith,   127   111. 

20—185  111.  382.  645;    Strawn   v.    Sweeny,    163    111. 

21—187  111.  544.  COS;    Carpenter   v.   Van   Orlinder, 

22—161  111.  67.  127  111.  42. 

23—169  111.  470.  25—66  111.  App.  119. 
24—193  111.  375,  citing,  with  ap-        26—188  111.  194. 


CONSTRUCTION  OF  WILLS.  89 

estate  remaining."  In  Johnson  v.  Askey,'^'^  the  words,  "revert 
back"  held  equivalent  to  "shall  go  to."  In  Stickel  v.  Crcme,^^ 
the  words,  "undisposed  of"  eonstinied  to  mean  "residue." 

In  Glover  v.  Condell,^^  the  words  "without  living  heirs  of 
their  body"  imports  definite  failure  of  issue;  and  the  words 
"without  leaving  issue,"  in  Metzen  v.  Schopp,^^  are  held,  to 
apply  to  the  time  of  the  death  of  the  devisee,  and  not  to  the 
time  of  the  death  of  the  testator. 

135.  The  rule  g-oveming  the  meaning  of  words  has  been 
laid  down  by  both  Wigram  and  Redfield  in  their  work  on 
wills ;  the  courts  of  Illinois  have  followed  the  rules  in  this  par- 
ticular laid  down  by  these  authors,  viz. :  "A  testator  is  always 
presumed  to  use  the  words  in  which'  he  expresses  himself,  ac- 
cording to  their  strict  and  primary  acceptation,  unless,  from 
the  context  of  the  will,  it  appears  he  has  used  them  in  a  dif- 
ferent sense,  in  which  case  the  sense  in  which  he  thus  appears 
to  have  used  them  will  be  the  sense  in  which  they  are  to  be 
construed.3^ 

136.  What  estate  conveyed,  words  of  inheritance,  quan- 
tity or  interest.  The  Statutes  of  this  State,  Section  13,  Chap- 
ter 30,  entitled  "Conveyance"  is  the  law  passed  in  1874,  and 
now  in  force.  It  provides  that,  "every  estate  in  lands  which 
shall  be  granted,  conveyed  or  devised,  although  other  words 
heretofore  necessary  to  transfer  an  estate  of  inheritance  be 
not  added,  shall  be  deemed  a  fee  simple  estate  of  inheritance,  if 
a  less  estate  be  not  limited  by  express  words,  or  do  not  appear 
to  have  been  granted,  conveyed  or  devised  by  construction  or 
operation    of    law."^^     The    words    used    in    the    instrument 

27 — 190  111.  62.  Statutes  of  Illinois,  with  Jones  & 

28 — 189  111.  218.  Addington's    Supplements   thereto, 

29—163  111.  585.  Vol.  1,  p.  925,  and  authorities  cit- 

30—202  111.  286.  ed;  Vol.  4,  p.  255,  and  authorities 

31 — Rawson   v.   Rawson,   52   111.  cited;   Vol.  5,  p.  116,  and  authori- 

63;  Richards  v.  Miller,  62  111.  419.  ties   cited.     Kurd's   R.    S.    of   III., 

32 — Starr    &    Curtis    Annotated  1905,  same  section  and  chapter,  p. 

466. 


90  THE  LAW  OF  ESTATES. 

as  in  a  will,  must  determine  whether  the  fee  is 
granted  or  not;  and  this  is  always  a  question  for  the 
court  when  construing  the  language  to  give  effect  there- 
to. Before  the  passing  of  this  statute,  it  was  the  law  of  Illi- 
nois, that  in  a  grant  or  conveyance,  or  devise, the  word  "heirs," 
or  an  equivalent  word,  was  necessary  to  transmit  the  inheri- 
tance; and,  by  the  omission  of  such  a  word  a  life  estate  only 
was  created.  Now  if  such  word  be  omitted  the  fee  passes  to 
the  grantee  and  is  transmissible  to  his  heirs,  if  a  less  estate 
is  not  limited  by  express  words,  or  do  not  appear  to  have  been 
granted,  conveyed,  or  devised,  by  construction  or  operation  of 
law.  Thus  it  has  been  held,  in  Baker  v.  Sc&ttp  that 
this  section  does  not  abolish  the  rule  in  Shelly 's  case  in  this 
State,  for  had  the  legislature  designed  to  abolish  that  rule 
they  would  have  done  so  in  express  terms  easily  understood. 
The  rule  in  Shelly 's  case  in  force  in  this  State,  has  been  ac- 
knowledged as  a  rule  of  property  by  the  common  law,  from 
the  time  of  Edward  II,  over  five  hundred  years.  "While 
some  of  the  states  have  abolished  this  rule,  as  applied  to  both 
deeds  and  wills,  the  courts  of  every  State  in  the  Union  in  which 
the  common  law  has  been  adopted  as  in  Illinois,  retain  that 
rule,  and  of  course  will  enforce  it  until  an  act  of  the  legislature 
shall  abolish  the  same.  It  will  be  noted  from  a  review  of  the 
authorities  the  question  arises  what  words  are  necessary  to 
carry  the  fee  in  real  estate?  Particularly,  this  is  so  where 
the  language  of  a  will  is  to  be  given  its  meaning  and  effect 
pertaining  to  a  grant  of  land  by  such  instrument.  We  there- 
fore, give  the  reader  some  of  the  cases  construed  by  our  court 
of  last  resort  indicating  the  quantity  of  interest  passing  under 
the  language  of  the  wills  construed. 

137.  In  Walker  v.  Pritchard,^*  a  testator  devised 
certain  lands  to  his  vsdfe,  giving  her  full  power  and  au- 
thority to  sell  and  convey  the  title  thereof  at  any  time  and 
convert  the  avails  to  her  own  use  and  benefit,  and  his  will 

33—62  111.  86.  34—121  111.  221. 


CONSTRUCTION  OF  WILLS.  91 

thus  proceeds:  "I  further  bequeath  during  her  natural  life- 
time one  span  of  horses,  and  all  other  items  not  otherwise  dis- 
IX)sed  of,  during  her  natural  life  as  aforesaid,"  and  at  her 
death,  "all  the  property  hereby  devised  or  bequeathed  to  her 
as  aforesaid,  or  so  much  thereof  as  may  remain  unexpended, 
to  my  sons  (naming  them),  and  to  their  heirs  and  assigns  for- 
ever:" Held,  that  the  widow  took  only  a  life  estate,  with  a 
power  of  disposition,  and  that  the  sons  took  the  remainder,  or 
such  part  as  remained  undisposed  of  at  her  death  and  could  be 
identified.  A  power  of  sale  superadded  to  a  life  estate  does  not 
enlarge  it  to  a  fee.  At  common  law  a  devise  of  land  without 
declaring  the  estate  therein,  gave  only  a  life  estate ;  but  our 
statute  has  changed  this  rule,  so  that  a  fee  simple  title  shall 
be  intended  if  a  less  estate  be  not  limited  by  express  words, 
or  do  not  appear  to  have  been  granted,  conveyed  or  devised, 
by  construction  or  operation  of  law.  In  the  absence  of  limiting 
or  qualifying  words,  a  devise  of  land  will  vest  the  fee ;  but 
with  such  words  the  will  is  to  be  construed  with  reference  te 
giving  effect  to  the  intention  of  the  testator,  as  manifested  by 
the  entire  instrument,  which  is  all  to  be  considered  together. 
The  burden  under  the  statute,  lies  on  him  who  contends  for  the 
restricted  construction  of  the  devise. 

138.  The  rule  in  Shelly 's  Case.  Theobold  on  Wills,  page 
484,  says:  "As  a  rule,  when  there  is  a  gift  to  A,  indefinitely, 
followed  by  a  gift  at  his  decease,  A  will  take  only  a  life  inter- 
est." The  application  of  the  rule  will  be  found  in  the  follow- 
ing cases  in  which  the  rule  was  applied :  Walker  v.  Pritchardf 
supra,  citing  case  of  Constable  v.  Bull,  3  DeG  and  S,  41 ;  and 
giving  words  of  will:  "I  give,  devise  and  bequeath  unto  my 
dear  wife,  Mary  Ann  Constable,  all  and  every  my  estate  and 
effects,  goods,  chattels,  house,  lands,  moneys,  etc.,  and  where- 
soever the  same  may  be  at  the  time  of  my  decease,  for  her 
sole,  separate  use  and  benefit.  I  further  give,  will  and  direct, 
that  at  the  decease  of  my  said  wife,  whatever  remains  of  my 
said  estate  and  effects  shall  go  to  and  be  equally  divided,  share 
and  share  alike,  between  the   following  persons   hereinafter 


92  THE  LAW  OF  ESTATES. 

named,"  etc.    It  was  held,  that  this  will  gave  only  a  life  estate 
to  the  widow, 

139.  In  the  ease  of  Bibbins  v.  Potter,^^  Emily  Bib- 
bins  by  her  will,  gave  her  sister,  Ann  Maria  Bibbins, 
"all  her  estates  and  effects,  both  real  and  personal," 
for  her  own  use  and  benefit,  absolutely.  By  a  cod- 
icil, made  afterwards,  and  directed  to  be  taken  as  a  part  of 
her  will,  she  added:  "After  the  death  of  my  sister,  Ann 
Maria  Bibbins,  I  give,  devise  and  bequeath  all  propertj^  of  mine 
which  may  then  be  remaining,  to,"  etc.  Held,  that  construing 
the  will  and  codicil  together,  the  gift  to  Ann  Maria  was  cut 
down  to  a  life  estate. 

Under  rule  in  Shelly 's  case,  a  devise  of  the  testator's  prop- 
erty to  his  wife,  "to  hold  and  to  have  to  her,  my  said  wife, 
and  to  her  heirs  and  assigns  forever,  but  if  she  gets  married 
again,  then  at  the  time  of  her  second  marriage  one-half  of 
said  estate,  real  and  personal,  to  be  sold  and  divided  as  fol- 
lows, etc.,"  passes  a  fee  to  the  widow,  notwithstanding  a  sub- 
sequent clause  attempts  to  limit  her  interest  to  a  life  estate. 
Held:  It  is  not  essential  to  the  application  of  the  rule  in 
Shelly 's  case,  that  the  will  shall  in  express  language  create  a 
freehold  estate  in  the  ancestor,  since  the  application  of  the 
rule  does  not  depend  upon  the  quantity  of  the  estate  given  to 
the  ancestor  but  upon  the  estate  devised  to  the  heirs.  Rissman 
V.  Wierth,^^  reviews  previous  cases  supporting  conclusions  in 
case  cited. 

Again,  where  a  will  provided,  that  real  estate  devised  to  the 
husband  of  the  testatrix  shall,  after  the  husband's  death,  re- 
vert to  the  heirs  of  the  testatrix,  "but  only  after  payment  by 
them"  to  the  husband's  heirs  for  improvements  on  the  land, 
passes  only  a  life  estate  to  the  husband,  and  not  a  fee,  and 
Buch  does  not  create  a  perpetuity,  since  "heirs  of  the  testa- 

35 — 10  Law  Reporter,  Ch.  Div.,    reviews  former  cases.    See  also,  in 

733.  this    connection,    and     applicable, 

36—220  111.  181,  pp.  185  to  187,    Johnson  v.  Buck,  220  111.  226;  Gary 

V.  Stead,  220  III.  508. 


CONSTRUCTION  OF  WILLS.  93 

trix"  means  those  living  at  her  death,  and  payment  by  them 
for  improvements  on  land  thus  devised  must  be  made  in  the 
lifetime  of  the  "heirs  of  the  testatrix, "^^ 

140.  The  case  Giles  v.  Anslow,^^  a  clause  of  the  will  was 
as  follows:  *'I  have  full  faith  and  confidence  in  my  be- 
loved wife,  Mary,  that  she  will  do  what  is  best  and  proper  with 
my  effects,  and  that  she  would  do  with  my  property  the  same 
as  I  would  wish  to  have  done, — that  she  will  take  care  of  the 
proceeds. ' '  In  the  reasoning  of  the  court  this  question  is  put, 
and  answered  by  the  court.  For  whose  benefit  did  he  expect 
her  to  manage  the  estate  and  take  care  of  the  proceeds  of  the 
property?  Manifestly  for  her  own  benefit,  and  to  guard 
against  improvidence  and  consequent  destitution  and  want. 
There  is  not  the  slightest  intimation  that  such  care  was  to  be 
exercised  in  the  interest  of  any  other  beneficiary.  No  provi- 
sion is  made  in  favor  of  the  nephews  or  any  other  person,  after 
the  estate  should  have  vested  in  the  widow.  The  clause  last 
quoted  of  the  will  is  immediately  followed  by  the  words :  ' '  She 
is,  by  this  gift,  free  from  all  restraint  to  do  as  may  seem  to 
her  best  and  proper."  The  testator  had  previously  left  her 
"free  from  all  restraint"  in  the  discharge  of  her  duties  as 
executrix  of  his  will.  She  was  to  be  free  from  all  restraint 
in  the  settlement  of  the  estate,  and  she  was  left  free  from  all 
restraint  to  do  with  the  subject  of  the  "gift"  as  might  in  her 
discretion,  seem  best  and  proper.  No  desire  or  even  recom- 
mendation is  expressed  that  she  should  make  any  disposition 
of  any  part  of  the  proceeds  of  the  estate  to  or  for  the  nephews, 
or  to  any  other  person  or  use,  or  the  expression  of  a  desire  that 
they  should  have  a  claim  on  her  bounty  or  generosity.  (Theo- 
bold  on  Laws  of  Wills,  380  and  cases  cited),  lays  down  the 
following  rule:  "When  there  is  an  absolute  power  of  disposal, 
with  the  confidence  expressed  that  the  donee  will  dispose  of 
the  property  according  to  the  testator's  wishes,  where  none 
are  expressed,  there  is  no  trust."    There  is  no  limitation  ex- 

37— Hill  V.  Gianelli,  221  111.  286.        38—128  III.  187. 


94  THE  LAW  OF  ESTATES. 

pressly  creating  a  life  estate  in  the  wife  of  the  testator.  Nor 
is  there  a  limitation  over  for  the  benefit  of  the  nephews,  either 
express  or  that  arise  by  implication  from  the  language  em- 
ployed. By  the  first  clause  of  the  will,  the  absolute  estate  in 
the  property  is  devised  to  the  wife,  and,  apparently  to  pre- 
vent any  mistake  or  misapprehension  arising  from  the  clause 
inserted  in  respect  to  the  disposition  of  the  estate  upon  her 
death  before  final  settlement,  she  is,  by  that  last  clause,  given 
absolute  dominion  and  control  over  it.  In  other  words,  she 
was  given  the  property  absolutely  and  in  fee,  upon  the  hap- 
pening of  the  event  of  a  settlement  of  the  estate  during  her 
life,  and  then,  upon  the  contingency  of  its  vesting  in  her,  she 
is  left  * '  unlimited  and  unfettered ' '  in  the  dominion,  control  and 
disposition  of  the  estate.^^ 

141.  If  the  instrument  be  doubtful  precatory  words  will 
not  be  construed  into  a  declaration  of  trust.  In  Giles  v. 
Anslow,'^^  the  court  citing  from  Theobold  on  the  law  of  wills, 
p.  379,  say:  "Therefore  mere  expression  of  a  desire  that  the 
donee  will  "be  kind  to,"^^  Baggins  v.  Yates,'^^  "remember," 

39— See  West   v.   Fitz,   109    111.  Gary  v.  Stead,  220  111.  508;  Hill  v. 

436,  this  case  holding  in  reasoning  Gianelli,  221  111.  286;  Vannetta  v. 

and  conclusion,  the  same  as  Giles  Carr,  223  111.  160;   Wallace  v.  Bo- 

V.  Anslow,  128  111.  187.  zarth,  223  111.  339. 

40 — The  following  cases  constru-  Note — We  call  attention  to  chap- 

ing  wills,  determine  whether  a  life  ter  50   of  this  work,   "Reversions 

estate  or  a  fee  was  intended  by  the  and  Remainders,"  as  many  of  the 

testator,  as  interpreted  under  rules  cases  cited,  in  note  40,  involve  the 

applied  to  the  language  used   in  creation  of  remainders,  and  the  le- 

the  will.    Boyd  v.  Strahan,  36  111.  gal    character    of    such    as    deter- 

355;  Mulberry  v.  Mulberry,  50  111.  mined   from   the   instrument   con- 

67;   Bergan  v.  Cahill,  55  111.  160;  strued.    And  further  as  to  whether 

Markillie  v.   Ragland,   77   111.   98;  possession  of  the  remainder  vests 

Johnson   v.   Johnson,   98   111.   564;  immediately,  or  at  the   end   of  a 

Bland  v.  Bland,  103  111.  11;  Hamlin  term  of  years,  or  for  life  or  fail  for 

V.  United  States  Express  Co.,  107  some  legal   reason   determined   in 

111.  443;  Lehndorf  v.  Cope,  120  111.  each  case. 

330;   Friedman  v.  Steiner,  107  111.  41—128  111.  195. 

126;    Rissman   v.    Wieth,    220    111.  42—9  Mo.  122;  8  Vin.  Ab.  PI.  27. 

181;  Johnson  v.  Buck,  220  111.  226;  43—9  Sim.  319. 


CONSTRUCTION  OF  WILLS.  95 

Bardswell  v.  Banrdswell,'^*  "consider,"  Sale  v.  Moore,  "deal  justly 
by,"  Pope  V.  Pope,'^^  "educate  and  provide  for,"^^  Macnab  v. 
"Wkitehread,  Winch  v.  Bruttan,*''  Fox  v.  Fox,*^  "or  do  justice 
to,"  Ellis  V.  Ellis,*^  "a  certain  class  of  persons,  will  raise  no 
trust." 

In  the  absence  of  words  showing  a  contrary  intent,  a  gift, 
whether  of  land  or  personal  property,  will  be  presumed  to  be 
absolute,  and  before  it  will  be  held  to  be  in  trust,  it  must  be 
clear  that  the  testator  intended  the  property  bequeathed,  or 
some  part  of  it,  to  be  applied  by  the  donee  for  the  purpose  of 
a  trust;  and  this  is  to  be  determined,  as  before  stated,  from  a 
consideration  of  the  entire  will,  and  the  circumstances  and 
conditions  of  the  estate  devised.  So  the  fact  that  personal 
property  was  included  in  the  devise  to  the  wife,  and  was  ex- 
pected by  the  testator  to  go  with  the  real  estate  to  her,  may 
be  considered  as  indicative  of  an  intent  to  give  her  an  abso- 
lute estate  in  land.^° 

142.    The   doctrine   in  respect  of  the  creation  of  trusts: 

Hawkins  on  Wills,  page  381:  "No  trust  will  be  implied  from 
precatory  words:  (a)  where  the  donee  may  at  his  discretion, 
apply  the  property  to  other  purposes  ;^i  LeFray  v.  Flood,  Cur- 
tis V.  Bippon,  Hoiose  v.  House,  Ex  parte  Payne,  (b)  or  where 
there  is  an  express  direction  that  the  donee's  absolute  interest  is 
not  to  be  curtailed;  Huskinson  v.  Bridge, ^^  Eaton  v.  Watts,  (c) 
where  the  precatory  words  are  stated  not  to  be  obligatory; 
Young  v.  Martin,  Shepherd  v.  Nottidge,  Cole  v.  Hawes,^^  (d)  or 
where  the  donee  is  to  take  free  and  unfettered  ;^^  Meredith  v. 
Heneage,  Hoy  v.  Martin,  White  v.  Briggs. 

44—1  Sim.  534.  51—4  Ir.  ch.  1;  5  Mad.  434;   23 

45—10  Sim.  1.  W.  R.  22;  2  Y.  &  C.  Ex.  636. 


52—15  Jur.  730;  1  Eq.  151. 


46—17  B.  299. 

47—14  Sim.  379. 

48—27  B    301.  S3— 2  Y.  Y.  C.  C.  582;  2  J.  &  H. 

49—23  W.  R.  *38.  766;   4  Ch.  D.  238. 

50— Hawkins  on  Wills,  131;  Lei-        54—1  Sim.  542;  6  Sim.  568;  15 
ter  V.  Shepard,  85  111.  243;  Giles  v.     Sim.  33. 
Anslow,  128  111.  196. 


96  THE  LAW  OF  ESTATES. 

In  Jarma/n  on  Wills,  page  388,  it  is  thus  stated:  **And 
when  the  words  of  a  gift,  expressly  point  to  an  absolute  en- 
joyment by  the  donee  himself,  the  natural  construction  of  sub- 
sequent precatory  words  is,  that  they  express  the  testator's 
belief  or  wish,  without  imposing  a  trust." 

In  2  Eedfield  on  Wills,  418,  the  rule  is  stated  as  follows: 
"It  seems  clear,  that  when  the  expression  of  request  or  desire 
in  the  will  is  ever  so  strong,  it  will  not  be  construed  to  create 
a  trust  for  others,  when  the  will  contains  an  expression  that 
the  devisee  is,  nevertheless,  to  be  free  to  act  in  his  own  dis- 
cretion." 

In  the  case  of  Giles  v.  Anslow,^^  the  court  holds,  that 
case  clearly  falls  within  the  rules  announced  by  the  authorities 
cited,  and  the  principal  devisee,  the  wife  of  the  testator,  upon 
the  settlement  of  the  estate  in  question,  took  absolutely  the 
property  remaining.  The  court  saying,  "we  are  not  justified 
in  creating  a  limitation  upon  the  devise  to  the  wife,  by  con- 
struction; nor,  in  our  opinion,  does  any  such  limitation  arise 
by  implication  from  the  language  of  the  will." 

143.  Devise  of  Land  Held  in  Security  of  a  Debt.  In  Stewart 
V.  Fellows,^^  it  is  held:  "If  a  party  holding  the  legal 
title  to  land  as  a  security  for  the  payment  of  moneys  advanced 
for  the  benefit  of  the  real  owner,  devises  the  land,  the  devise 
will  carry  whatever  right  the  devisor  had  therein,  to  his  de- 
visee. ' '  The  following  facts  appear  of  record  in  the  case  cited : 
A  party  taking  the  title  to  a  lot  as  a  security  for  the  purchase 
money  advanced,  by  his  will  bequeathed  and  devised  the  prop- 
erty to  F;  subject  to  the  condition  that  in  case  one  S  (the 
debtor),  should,  within  one  year,  pay  to  F,  "such  principal 
and  interest  as  shall,  at  the  time  of  such  payment,  be  due  me 
on  an  account  now  open  between  us,  the  principal  sum  and 
interest  thereon,  then  I  authorize  and  empower  said  F,  to  con- 
vey said  realty  to  said  S,  and  in  said  case,  I  give  and  bequeath 
to  said  F,  such  sum  of  money  so  paid,"  etc.    The  testator,  in 

55—128  111.  157.  56—128  111.  480. 


CONSTRUCTION  OF  WILLS.  97 

his  lifetime,  made  a  deed  of  the  property  to  the  wife  of  S,  and 
left  it  with  his  banker,  to  be  delivered  in  case  of  his  death. 
On  bill  to  foreclose  S's  equity  of  redemption,  the  court  admit- 
ted the  will  in  evidence,  holding  the  will  was  competent  evi- 
dence to  show  complainant's  title  by  the  devise,  and  that  it 
was  also  competent  evidence  as  tending  to  sustain  the  conten- 
tion that  the  deed  had  not  been  delivered  to  the  wife  of  S,  and 
was  not  intended  to  be  delivered  except  on  payment  of  the 
open  account. 

144.  Estates  tail.  The  legislature  of  Illinois  in  passing  Sec- 
tion 6,  Chapter  30,  of  the  Conveyance  Act,  obviously  intended, 
to  prevent  the  tying  up  of  titles  in  perpetuity  by  entails.  And 
also  enable  the  grantor  in  making  a  conveyance  or  the  testator 
by  will,  to  say  to  whom  the  land  in  a  deed  or  will  made  by 
him  should  go  in  remainder.  Fee  tail  estates  are  under  the 
statute  life  estates,  when  such  is  intended.  Any  words  limit- 
ing to  a  certain  line  of  heirs,  will  create  an  estate  tail  or  life 
estate ;  no  special  formula  being  necessary.^^  A  deed  to  a  tract  of 
land  to  A,  a  married  woman,  * '  and  her  heirs  by  her  present  hus- 
band, B."  Conveyed  to  her  what  would  have  been  an  estate  tail 
by  the  common  law,  but  under  the  statute  noted,  an  estate  for 
her  life,  only,  with  remainder  in  fee  to  her  heirs  by  B,  or  those  to 
whom  the  estate  was  immediately  limited.  The  court  hold- 
ing, the  words  "to  her  heirs  by  her  present  husband  B, " 
meant,  to  the  issue  of  her  body  by  her  then  present  husband 
begotten.  So  that  her  heirs,  the  issue  of  her  body  by  B,  take 
the  remainder  in  fee  simple  on  the  death  of  the  first  grantee  or 
donee.**^ 

145.  Devises  to  a  class.  It  is  a  well  settled  rule  in  the  con- 
struction of  wills,  that  where  there  is  a  devise  to  a  class  of 
persons,  as  to  the  children  or  issue  of  A,  and  the  estate  is  to 

57— Lehndorf   v.   Cope,    122    III.  Vol.  1,  pp.  917,  918,  and  cases  cited; 

317.  Vol.  4,  p.  254,  and  cases  cited;  Vol. 

58 — Starr    &    Curtis    Annotated  5,  p.  116,  and  cases  cited.    Kurd's 

Statutes  of  Illinois,  with  Jones  &  R.   S.  of  111.,  1905,  p.  464. 
Addington's   Supplements  thereto, 
7 


98  THE  LAW  OF  ESTATES. 

come  into  possession  of  the  devisees  immediately  upon  the 
death  of  the  testator,  those  persons  of  the  class  who  are  in 
being  at  the  death  of  the  testator  will  take  the  devise,  to  the 
exclusion  of  those  thereafter  born.  But  if  the  will  carves  out 
a  particular  estate,  which  intervenes  between  the  death  of  the 
testator  and  the  period  of  distribution  of  the  estate  devised  to 
the  class,  then  all  persons  belonging  to  such  class,  at  the  tim*^ 
when  the  estate  is  divided,  are  included,  though  born  after  the 
death  of  the  testator. ^^ 

146.  In  Mather  v.  Matlier,^^  the  will  made  devise 
of  the  "net  income,  of  testator's  estate  to  his  wife  and  chil- 
dren, during  their  lives,"  the  court  holding  the  language  used 
was  a  devise  of  his  estate  to  his  children  during  their  lives, 
and  on  the  death  of  the  last  surviving  child  the  remainder  to 
go  to  his  grandchildren,  or  their  children,  living  at  the  period 
of  distribution.  A  particular  estate  would  then  vest  in  his 
children  at  the  death  of  the  testator,  and  it  is  such  an  estate 
in  them  as  will  support  the  remainder  in  the  grandchildren 
to  whom  it  is  devised.  That  being  so,  the  children  of  the  tes- 
tator took  a  particular  estate  which  would  prevent  the  estate 
devised  to  the  grandchildren  from  vesting  in  possession  at  the 
death  of  the  testator,  and  thus  it  would  let  in  afterborn  chil- 
dren. Adopting  this  construction,  the  case  is  relieved  of  much 
difficulty,  and  effect  can  be  given  to  the  plainly  expressed  in- 
tention of  the  testator.  In  the  case  the  rule  given  in  the  text 
was  applied  and  under  that  rule  all  grandchildren  living  at 
the  termination  of  the  life  estate  of  the  testator's  children,  as 
well  those  born  after  as  before  his  death,  were  permitted  to 
share  in  his  estate. 

147.  In  Cheney  v.  Teese,^^  the  testator's  will  read: 
* '  I  hereby  give  the  fee  simple  of  '  the  lands '  to  my  grandchil- 
dren, whatever  number  they  may  be,  share  and  share  alike, 
to  take  possession  only  after  the  death  of  my  said  daughters." 

59—2  Jarman  on  Wills,  75,  79;         60—103  111.  607. 
Handberry  v.  Doolittle,  38  111.  202.        61—108  111.  482. 


CONSTRUCTION  OF  WILLS.  99 

Held,  except  so  far  as  limited  by  the  words  postponing  the  pos- 
session, the  grant  is  present  and  unconditional  of  a  present  full 
fee  simple  to  the  grandchildren.  Under  this  will  the  two 
grandchildren  iii  esse  at  the  death  of  the  testator  took  at  once 
a  vested  remainder  in  all  the  lands,  to  open  however,  upon  the 
subsequent  birth  of  other  grandchildren,  if  any,  to  let  in  those 
subsequently  born. 

148.  In  McCarthey  v.  Osburn,^^  it  is  said:  All  the 
provisions  of  the  will  considered,  we  have  no  doubt  of  the 
correctness  of  the  conclusions  of  the  court  below  in  holding 
that  the  expression,  "heirs  of  Henrietta,"  means  simply  the 
children  of  Mrs.  Osburn.  That  the  words,  "child  of  Hen- 
rietta," are  here  used  in  the  same  sense  as  "heirs  of  Henrietta" 
in  the  preceding  sentence,  can  not  seriously  be  doubted.  The 
testator  having  in  the  second  clause  of  the  will,  spoken  of 
Harry  G.  McCarthey  as  the  only  heir  of  his  deceased  daughter, 
Jennie,  and  of  the  children  of  Mrs.  Osburn  as  "heirs  of  Hen- 
rietta." In  the  third  clause  follows  the  words  "should  any 
of  the  heirs,  after  arriving  at  that  age  (twenty-one  years),  wish 
to  go  into  business,"  etc.  Held,  the  testator  by  the  expres- 
sion, "the  heirs,"  evidently  means  to  include  the  children  of 
both  of  his  daughters,  thus  bringing  all  his  grandchildren,  the 
remaining  objects  of  his  bounty,  into  a  common  class,  and 
clearly  placing  them  on  a  common  footing,  at  least  so  far  as 
that  particular  provision  of  the  will  is  concerned.  The  case 
cited  is  long,  but  fully  discusses  the  principles  contended  for 
in  this  section.  In  Woodward  v.  Woodward,^^  where 
a  will  devised  real  estate  in  fee,  and  the  testator  before 
his  death  conveyed  the  real  estate  to  the  devisee  in  trust  for 
the  benefit  of  the  devisor,  it  was  held,  that  at  the  death  of  the 
devisor  all  the  title,  which  he  had,  both  legal  and  equitable, 
passed  to  the  devisee. 

149.  Widow's  renunciation  and  election.     In   Cowwaij  v. 

Hitclicoch,^^     the     record     disclosed     that     the     widow     sup- 

62—118  III.  414.  64—103  III.  271. 

63—33  Colo.  457. 


100  THE  LAW  OF  ESTATES. 

posed  she  had  the  right  to  take  under  the  will,  and  at  the 
same  time  accept  the  widow's  award.  It  being  held:  "Under 
the  circumstances  it  would  be  adopting  a  hard  rule  to  hold  that 
the  mere  act  of  accepting  the  widow's  award,  under  a  mis- 
taken belief,  would  bar  her  of  all  rights  under  the  will,  and  we 
do  not  believe  that  any  respectable  authority  would  sustain 
a  precedent  of  that  character,  "^s  Before  any  presump- 
tion of  an  election  can  arise,  it  is  necessary  to  show 
that  the  party  acting  or  acquiescing  was  cognizant  of 
his  rights.  When  this  is  ascertained  it  may  be  further  neces- 
sary to  consider  whether  the  party  intended  an  election.  The 
widow  in  this  case,  by  accepting  the  award,  as  appears  from 
the  evidence  never  intended  to  reject  the  provisions  of  the  will, 
but  all  the  time  supposed,  and  was  advised,  that  it  was  her 
right  to  take  under  the  will  and  accept  the  widow's  award. 
Under  such  circumstances  we  perceive  no  ground  for  holding 
that  she  cannot  take  under  the  will.^^ 

In  Evans  v.  Price,^'^  the  record  shows  that  the  widow 
by  written  renunciation  elected  to  take  her  dower  as 
widow,  and  not  an  absolute  estate  as  heir.  Held:  It  matters 
little  what  she  claimed  or  did  not  claim.  Her  rights  were  fixed 
by  statute,  on  renouncing  the  will,  and  they  could  not  be  af- 
fected by  claiming,  or  omitting  to  claim,  any  specific  estate. 
And  in  Colorado  it  is  held,  where  the  widow  renounces  under 
the  will  and  elects  to  take  one-half  of  whole  estate,  she  is  en- 
titled to  remaining  moiety  after  discharge  of  debts  against  the 
estate.68 

In  Ward  v.  Ward,^^  it  is  held:  The  portion  raised 
for  an  after-born  child,  from  the  various  devises,  was  subject 
to  the  widow's  dower,  notwithstanding,  she  may  have  re- 
nounced under  the  will ;  the  part  taken  by  such  child  is  to  be 
treated  as  intestate  property,  and  the  provisions  of  the  will 

65— story's  Eq.,  Vol.  2,  Sec.  1097.  68 — Hannah   v.   Palmer,   6  Colo. 

66— Conway  v.  Hichcock,  103  111.  161. 

271.  69—129  111.  111. 
67— lis  111.  598. 


CONSTRUCTION  OF  WILLS.  101 

made  for  the  widow  is  subject  to  its  proportionate  part  in  mak- 
ing up  the  portion  of  such  child. 

150.  Widow  of  illegitimate  given  whole  estate.  In  Evans 
V.  Price,"^^  the  widow  of  an  illegitimate  was  given,  on  re- 
nouncing, the  whole  estate  under  the  statute  of  descent.  The 
record  shows  that  on  the  day  the  will  was  admitted  to  probate, 
the  widow  filed  her  written  renunciation  of  its  provisions  in 
her  favor,  and  requested  that  it  be  made  a  matter  of  record, 
which  was  done.  It  was  conceded  the  testator  was  an  "illegiti- 
mate person,"  as  the  term  is  used  in  the  statute;  that  he  died 
leaving  no  child  or  descendants  of  any  child,  and  that  his 
widow,  P.,  survived  him.  Held :  Under  the  act  of  1872,  where 
an  illegitimate  person  died  testate,  leaving  a  widow  and  no 
descendants,  his  widow,  upon  renunciation  of  his  will  within 
one  year  after  its  probate,  took  absolutely  the  whole  of  his 
estate,  both  real  and  personal. 

70—118  111.  598. 


CHAPTER   IX 


CONSTRUCTION  OF  WILLS-CONTINUED 


Sec. 

151.  General  rules  relating  to  the 

construction  of  wills. 

152.  Ancient  English  rules  of  con- 

struction, general. 

153.  Ancient    rules    modified     and 

broadened,  Rule  VII. 


Sec. 

154.  Rule  XVII  modified. 

155.  Rule  XIX  modified. 

156.  American    principles    of    con- 

struction. 

157.  The  Illinois   decisions  follow 

the   modern   principles. 


Sec.  151.  General  rules  relating^  to  the  construction  of 
wills  are  here  given  as  published  by  Mr.  Redfield  in  his  work 
on  Wills,!  collated  by  Mr.  Jarman  in  his  work  on 
"Wills.  We  omit  the  authorities  cited  by  the  author 
in  support  of  the  various  rules,  referring  the  reader 
to  the  works  in  question  for  such  purpose.  The  Ameri- 
can cases,  under  the  modern  rules  of  construction,  very  often 
disregard  the  general  rules  when  it  becomes  necessary  so  to  do, 
in  order  to  uphold  a  will  and  give  effect  to  the  intention  of 
the  testator.  Mr.  Redfield  says,  page  421  of  the  same  volume : 
"There  is  no  better  principle  in  regard  to  all  rules  of  con- 
struction, whenever  applied,  than  to  use  them  as  helps  and  as- 
sistants toward  reaching  the  intent  of  the  testator ;  and  to  aban- 
don them  whenever  it  is  apparent  they  lead  one  side  of  that 
object,  thus  making  them  our  servants  rather  than  our  mas- 
ters." We  also  cite  from  note  2  of  this  author,  as  it  is  quite 
pat  to  the  subject  in  hand.  "Lord  Kenyon's  opinion  in 
Small  V.  Allen.^  It  has  happened  in  regard  to  the 
wills  of  some  of  the  most  eminent  of  the  English  bar  that  they 
have  been  held  absolutely  void  for  uncertainty.  The  case  of 
Sir  J.  Bland  is  here  mentioned  by  his  lordship,  who  said  at  the 
close  of  his  will,  that  he  had  disposed  of  his  estate  in  so  clear 


l_Vol.  1,  4th  ed.,  p.  425,  et  seq. 


-8  T.  R.  497,  502. 


102 


CONSTRUCTION  OF  WILLS— CONTINUED.        103 

a  manner  that  it  was  impossible  for  any  lawyer  to  doubt  about 
it.  This  will  was  afterwards  contested,  and  came  before  Lord 
Hardwicke,  who  said  that  he  was  utterly  at  a  loss  to  conjecture 
the  intention  of  the  testator,  that  he  "wished  he  could  find 
some  ground  on  which  to  found  a  conjecture." 

152.      Ancient    English    rules    of    construction    generaL 

I.  That  a  will  of  real  estate,  wheresoever  made,  and  in  what- 
ever language  written,  is  construed  according  to  the  law  of 
England  (in  other  words,  according  to  the  law  of  the  place 
where  the  real  estate  is  situated).  But  a  will  of  personalty  is 
governed  by  the  lex  domicilii  (the  place  of  residence  of  the 
deceased  person;  in  the  county  and  State  fixed  by  statute  law 
for  the  probating  of  such  will).^ 

II.  That  technical  words  are  not  necessary  to  give  effect  to 

any  species  of  disposition  in  a  will. 

III.  That  the  construction  of  a  will  is  the  same  at  law  and  in 
equity.  The  jurisdiction  of  each  being  governed  by  the  nature 
of  the  subject  though  the  consequences  may  differ,  as  in  the  in- 
stance of  a  contingent  remainder,  which  is  destructible  in  the 
one  case  and  not  in  the  other. 

IV.  That  a  will  speaks,  for  some  purposes,  from  the  period 
of  execution,  and  for  others  from  the  death  of  the  testator; 
but  never  operates  until  the  latter  period. 

v.  That  the  heir  is  not  to  be  disinherited  without  an  express 
devise  or  necessary  implication,  such  implication  importing  not 
natural  necessity,  but  so  strong  a  probability  that  an  intention 
to  the  contrary  cannot  be  supposed. 

VI.     That  merely  negative  words  are  not  sufficient  to  ex- 

3— R.    S.    of   111.,    1874,    Sec.    13,  Same  statutes  Vol.  3,  p.  4041,  and 

Chapt.  30,  "Conveyance"  Act,  chap-  case  cited  under  section  11,  "Wills" 

ter  148,  section  11,  "Wills."     Starr  Act.     Kurd's   R.    S.    of   111.,    1905, 

&    Curtis    Annotated    Statutes    of  Chapt.   30,    Sec.   13,   "Conveyance" 

Illinois,  with  Jones  &  Addington's  Act,  p.  466;  Turner  v.  House,  199 

Supplements    thereto.    Vol.    1,    p.  111.  464.    Kurd's  R.  S.  of  111.,  1905, 

925;  Vol.  4,  p.  255;  Vol.  5,  p.  116,  Chapt.  148,  Sec.  11,  "Wills"  Act,  p. 

and  cases  cited  in  each  volume:  2052,  R.  S.  of  1845,  p.  540,  Sec.  17. 


104  THE  LAW  OF  ESTATES. 

elude  the  title  of  the  heir  or  next  of  kin.    There  must  be  an 
actual  gift  to  some  other  definite  object. 

VII.  That  all  the  parts  of  a  will  are  to  be  conttrued  in  re- 
lation to  each  other,  and  so  as,  if  possible,  to  form  one  con- 
sistent whole,  but  where  several  parts  are  absolutely  irrecon- 
cilable, the  latter  must  prevail. 

VIII.  That  extrinsic  evidence  is  not  admissible  to  alter,  de- 
tract from,  or  add  to,  the  terms  of  a  will;  though  it  may  be 
used  to  rebut  a  resulting  trust  attaching  to  a  legal  title  created 
by  it;  or  to  remove  a  latent  ambiguity  (arising  from  words 
equally  descriptive  of  two  or  more  subjects  or  objects  of  gift). 

IX.  Nor  to  vary  the  meaning  of  words ;  and,  therefore  to  at- 
tach a  strained  and  extraordinary  sense  to  a  particular  word; 
an  instrument,  executed  by  the  testator,  in  which  the  same 
words  occurs  in  that  sense  is  not  admissible. 

X.  But  the  courts  will  look  at  the  circumstances  under 
which  the  devisor  makes  his  will,  as  the  state  of  his  property 
and  the  like. 

XI.  That  in  general,  implication  is  admissible  only  in  the 
absence  of,  and  not  to  control,  an  express  disposition. 

XII.  That  an  express  and  positive  devise  cannot  be  con- 
trolled by  the  reason  assigned  or  by  subsequent  ambiguous 
words;  or  by  inference  and  argument  from  other  parts  of  the 
will ;  and,  accordingly,  such  a  devise  is  not  affected  by  a  subse- 
quent inaccurate  recital  of,  or  reference  to,  its  contents ;  though 
recourse  may  be  had  to  such  reference  to  assist  the  construc- 
tion in  case  of  ambiguity  or  doubt. 

XIII.  That  the  inconvenience,  or  absurdity  of  a  devise,  is  no 
ground  for  varying  the  construction,  where  the  terms  of  it  are 
unambiguous;  nor  is  the  fact,  that  the  testator  did  not  foresee 
all  the  consequences  of  his  disposition,  a  reason  for  varying 
it.  But  where  the  intention  is  obscured,  by  conflicting  expres- 
sions, it  is  to  be  sought  rather  in  a  rational  and  consistent,  than 
an  irrational  and  inconsistent,  purpose. 

XIV.  That  the  rules  of  construction  cannot  be  strained,  to 
bring  a  devise  within  the  rules  of  law ;  but  it  seems  that,  where 


CONSTRUCTION  OF  WILLS— CONTINUED.  105 

the  will  admits  of  two  constructions,  that  is  to  be  preferred 
which  will  render  it  valid;  and  therefore  the  court,  in  one  in- 
stance, adhered  to  the  literal  language  of  the  testator,  though  it 
was  highly  probable  that  he  had  written  a  word,  by  mistake, 
for  one  which  would  have  rendered  the  devise  void.* 

XV.  That  favor,  or  disfavor,  to  the  object,  ought  not  to  influ- 
ence the  construction. 

XVI.  That  words,  in  general,  are  to  be  taken  in  their  ordi- 
nary and  grammatical  sense,  unless  a  clear  intention  to  use 
them  in  another  can  be  collected,  and  that  other  can  be  ascer- 
tained ;  and  they  are  in  all  cases  to  receive  a  construction  which 
will  give  to  every  expression  some  effect,  rather  than  one  that 
will  render  any  of  the  expressions  inoperative ;  and  of  the  two 
modes  of  construction,  that  is  to  be  preferred  which  will  pre- 
vent a  total  intestacy. 

XVII.  That  where  a  testator  uses  technical  words,  he  is 
presumed  to  employ  them  in  their  technical  sense,  unless  the 
context  clearly  indicates  the  contrary. 

XVIII.  That  words,  occurring  more  than  once  in  a  will, 
shall  be  presumed  to  be  used  always  in  the  same  sense,  unless 
a  contrary  intention  appears  by  the  context,  or  unless  the 
words  be  applied  to  a  different  subject.  And,  on  the  same  prin- 
ciple, where  a  testator  uses  an  additional  word  or  phrase,  he 
must  be  presumed  to  have  an  additional  meaning.  And  where 
the  argument,  that  the  testator,  notwithstanding  some  varia- 
tion of  expression  had  the  same  intention,  in  several  instances 
prevailed,  in  the  English  cases. 

XIX.  The  words  and  limitations  may  be  transposed,  where 
warranted  by  the  immediate  context,  or  the  general  scheme  of 
the  will;  but  not  merely  on  a  conjectural  hypothesis  of  the 
testator's  intention,  however  reasonable,  in  opposition  to  the 
plain  and  obvious  sense  of  the  language  of  the  instrument. 

XX.  That  words  which  it  is  obvious  are  miswritten  (as 
dying  with  issue  for  dying  without  issue),  may  be  corrected. 

XXI.  That  the  construction  is  not  to  be  varied  by  events, 

4—3  Bur.  1626;  3  Br.  P.  C.  Toml.     209. 


106  THE  LAW  OF  ESTATES. 

subsequent  to  the  execution;  but  the  courts,  in  determining" 
the  meaning  of  particular  expressions,  will  look  to  possible 
circumstances,  in  which  they  might  have  been  called  upon  to 
affix  a  signification  to  them. 

XXII.  That  several  independent  devises,  not  grammatically- 
connected,  or  united  by  the  expression  of  a  common  purpose, 
must  be  construed  separately,  and  without  relation  to  each 
other;  although  it  may  be  conjectured,  from  similarity  of  re- 
lationship, or  other  such  circumstances,  that  the  testator  had 
the  same  intention,  in  regard  to  both.  There  must  be  an  appar- 
ent design  to  connect  them.  This,  and  the  former  class  of 
cases,  chiefly  relate  to  a  question  of  frequent  occurrence; 
whether  words  of  limitation,  preceded  by  several  devises,  relate 
to  more  than  one  of  those  devises. 

XXIII.  That  where  a  testator's  intention  cannot  operate  to 
its  full  extent,  it  shall  take  effect  as  far  as  possible. 

XXrV.  That  a  testator  is  rather  to  be  presumed  to  calculate 
on  the  disposition  of  his  will  before  taking  effect,  than  the  con- 
trary; and,  accordingly,  a  provision  for  the  death  of  devisees 
will  not  be  considered  as  intended  to  provide  exclusively  for 
lapse,  if  it  admits  of  any  other  construction. 

153.  General  rules  modified  and  broadened.  General  rule 
VII.  was  modified  and  broadened  in  Norris  v.  Beyea,^  as  follows : 
"Every  part  of  the  instrument  must  have  its  just  operation,  un- 
less there  arises  some  invincible  repugnance,  or  else  some  portion 
is  absolutely  unintelligible."  This  modified  rule  being  now 
universally  applied  by  American  courts. 

154.  Rule  XVII.  was  modified  by  English  decisions.  Young 
V.  Robertson,  Hall  v.  Warren,^  as  follows :  The  primary 
duty  of  a  court  of  construction,  in  the  interpretation 
of  wills,  is  to  give  to  each  word  employed,  if  it  can 
with  propriety  receive  it,  the  natural,  ordinary  mean- 
ing,  which    it   has   in   the   vocabulary   of   ordinary   life,   and 

6—13  N.  Y.  273,  285.  6—4  Mack,  H.  L.  314,  325;  Hall 

V.  Warren,  9  H.  L.  Cas.  420. 


CONSTRUCTION  OF  WILLS— CONTINUED.  107 

not  to  give  words  employed  in  that  vocabulary  an  artificial,  a 
secondary,  and  a  technical  meaning.  In  the  latter  case  it  being 
held,  in  construing  the  will  of  an  illiterate  man,  the  meaning 
of  technical  language  may  be  disregarded,  but  no  word  which 
has  a  clear  and  definite  operation  can  be  struck  out. 

155.  Rule  XIX.  has  also  been  broadened  by  American  and 
English  decisions,  and  as  the  modified  rule  is  quite  often  applied 
in  the  Illinois  cases,  the  authorities  will  be  cited  under  the 
proper  head  when  the  rule  is  applied ;  it  is  as  follows :  Words, 
or  clauses  of  sentences,  or  even  whole  paragraphs  may  be  trans- 
posed to  any  extent,  with  a  view  to  show  the  intention  of  the 
testator.  But  it  must  appear  either  from  the  words  of  the  will, 
or  extrinsic  proof,  admissible  in  aid  of  the  construction  of  the 
words,  that  the  transposition  does  really  bring  out  the  true 
intent  of  the  testator,  and  thus  render  clear  what  was  before 
obscure.  For  if  the  transposition  leaves  the  same  uncertainty, 
only  giving  a  different  import,  it  is  not  allowable.  But  where 
it  gives  effect  to  all  provisions  of  the  will,  and  renders  them 
all  harmonious  and  consistent,  both  with  each  other,  and  with 
the  general  purpose  and  intent  of  the  will,  it  affords  very  sat- 
isfactory ground  of  presumption,  that  it  reaches  the  source 
of  the  difficulty  and  explains  the  mode  in  which  it  arose. 

156.  American  principles  of  construction.  American  courts 
through  a  long  line  of  decisions,  which  are  now  generally  fol- 
lowed, have  established  many  principles  of  interpretation 
rightly  their  own;  these  principles  have  arisen  from  long 
experience  and  from  the  modern  desire  of  the  American  courts 
to  uphold  and  give  effect  to  any  will  they  may  be  called  upon 
to  construe,  if  in  so  doing,  the  conclusion  is  supported  by 
sound  reasoning  and  well  settled  principles  of  our  own  courts. 
The  result  being,  the  proportion  of  wills,  and  the  devises 
and  bequests  thereunder,  which  in  olden  times  would  have  been 
declared  void  for  uncertainty,  have  under  modem  construction 
materially  diminished,  until  now,  we  might  say,  it  is  very  uncom- 
mon for  wills  to  be  declared  void  for  uncertainty,  and  then  it 


108  THE  LAW  OF  ESTATES. 

will  occur  through  some  grave  oversight,  or  lack  of  ability  in 
the  preparation  of  the  instrument. 

157.  The  Illinois  decisions  will  be  found  to  follow  the  path 
laid  out  by  the  modern  principles;  and  while  the  old  general 
rules  are  not  and  cannot  be  abandoned,  for  they  apparently 
embrace  nearly  every  case  that  could  arise,  American  courts 
find  it  impossible  at  all  times  to  do  full  justice,  by  following 
blindly  the  old  rules  without  the  application  of  modern  prin- 
ciples. 


CHAPTER   X 


CONSTRUCTION  OF  WILLS— CONTINUED 


Sec. 

158.  General   remarks. 
359.  The  construction  of  wills,  etc., 
is   for   court. 

160.  No   distinction  In   method  of 

executing,  attesting  and 
proving, 

161.  Codicils   attached   or  append- 

ed, considered  part  of  will. 

162.  Publication  of  codicil  is  pub- 

lication of  will. 

163.  The  general   rules   of  Ameri- 

can courts  for  interpreting 
wills. 

164.  Technical     and     grammatical 

errors,  punctuation. 

165.  Greatest  indulgence  to  use  of 

language. 

166.  The  purpose  of  construction. 

167.  Particular    expressions    yield 

to  general  purpose. 

168.  Specific    articles    bequeathed, 

cannot  be  sold,  lost  or  de- 
stroyed and  replaced  by  an- 
other ai:ticle,  unless  specific- 
ally required. 

169.  Words  will  be  read  into  will 

when  necessary  to  give  in- 
tention. 

170.  But    under    pretense    of   con- 

struction, courts  have  no 
right  to  either  reject  or 
supply  words. 

171.  Patent    and    latent    ambigui- 

ties. 

172.  Latent  ambiguity  Is  disclosed 

by  extrinsic  evidence. 

109 


Sec. 

173.  Ambiguity  explained  and  fur- 

ther defined. 

174.  Facts  dehors  the  will. 

175.  Will  devising  real  estate. 

176.  Will  devising  personalty. 

177.  Words  of  inheritance  not  nec- 

essary to  convey  fee. 

178.  Where    devises    are    made    to 

trustee. 

179.  Repugnant  clauses. 

180.  Brownfield  v.  Wilson. 

181.  Friedman  v.  Stelner. 

182.  Life  estate  power  of  sale. 

183.  Henderson  v.  Blackburn. 

184.  Green  v.  Hewitt. 

185.  Kirkpatrick  v.  Kirkpatrick. 

186.  Chapin  v.  Crow. 

187.  Bowerman  v.  Sessel. 

188.  Walker  v.  Pritchard. 

189.  Fee-tail,  life  estate  to  grantee, 

remainder    to    successor    in 
fee. 

190.  Frazer  v.  Supervisors. 

191.  Fee  simple  intended,  if  lessor 

be  not  limited. 

192.  The  rule  in  Shelley's  case. 

193.  Hageman  v.  Hageman. 

194.  Baker  v.  Scott. 

195.  Carpenter   v.   Van   Orlinder. 

196.  Vesting  of  estates,  vested  and 

contingent  remainder. 

197.  Joint     tenancy,     tenancy     in 

common. 

198.  Conditions     and     conditional 

limitations. 

199.  Jennings  v.  Jennings. 


110 


THE  LAW  OF  ESTATES. 


Sec. 

200.  Conversion. 

201.  Election  allied  with   doctrine 

of. 

202.  Testator  presumed  to  dispose 

of  his  whole  estate. 

203.  Schofield  v.  Olcott. 

204.  Tautenham  v.  Dunz. 

205.  Perpetuities. 

206.  Fussey  v.  White. 

207.  Hale  v.  Hale. 

208.  St.    Peter's    Roman    Catholic 

Church  V.  Grermain. 

209.  Charitable  gifts  and  uses. 

210.  The  legal  definition  of. 

211.  Statute  of  Charitable  Uses,  43 

Elizabeth,  chapter  4. 

212.  The   chancellor  will   direct  a 

scheme  for  the  charity. 

213.  The  doctrine  of  cy  pres. 

214.  Heuser  v.  Harris. 

215.  Power  of  sale  under  will. 

216.  Sale  of  an  heir's  expectancy. 

217.  Executor's  interest. 

218.  Act  of  21  Henry  VII,  chapter 

4,  In  force  in  Illinois. 

219.  Lambert  v.  Harvey. 

220.  The  application  of  the  statute 

of  Illinois. 

221.  Misdescription,      surrounding 

circumstances. 

222.  Bowen  v.  Allen. 

223.  Kurtz  v.  Hibner. 

224.  Kirkland  v.  Conway. 

225.  Smith  v.  Dennison. 

226.  Kaufman  v.   Breckinridge. 

227.  Survivorship. 


Sec. 

228.  Blanchard  v.  Maynard. 

229.  Arnold  v.  Alden. 

230.  Charging   legacies   and   debts 

on  land. 

231.  General  rule. 

232.  Reid  v.   Corrigan. 

233.  Bucher  v.  Bucher, 

234.  McCullom  v.  Chidester. 

235.  Miscellaneous   cases   charging 

debts  and  legacies. 

236.  Johnson  v.  Johnson. 

237.  Stickel  v.  Crane. 

238.  McFarland  v.  McFarland. 

239.  Daily  v.  Wilkie. 

240.  Irwin  v.  Walpert. 

241.  Richardson  v.  Ranson. 

242.  Richardson   v.   Eveland. 

243.  Charges    upon    gifts    election 

applied. 

244.  Doctrine   of    election    applied 

to  dower  and  other  rights. 

245.  Election  express  and  implied. 

246.  Ademption  of  legacies. 

247.  Richardson  v.   Eveland. 

248.  The  application  of  the  word 

"money"  as  used  in  will. 

249.  Per  capita  and  per  stirpes. 

250.  Residuary  bequests  and  lega- 

tees. 

251.  To    whom    the    residuary    es- 

tate will  go. 

252.  Abatement  suits  to   collect. 

253.  Presumption    of    death    after 

seven  years. 

254.  Heintz  v.  Ahlgren. 


Sec.  158.  General  remarks.  Ow^ng  to  the  vast  number  of 
cases  involving  the  construction  of  wills,  testaments  and  codi- 
cils by  the  Illinois  court,  we  give  in  this  chapter,  the  well  set- 
tled general  rules  governing  the  interpretation  and  construc- 
tion of  such  instruments  by  the  supreme  court  of  this  state. 
The  courts  of  Illinois  have  and  do  apply  when  necessary,  all 


CONSTRUCTION  OF  WILLS— CONTINUED.  Ill 

the  ancient  rules  of  construction  and  such  modifications  thereof, 
as  the  courts  of  this  country  consider  best  adapted  to  our  prac- 
tice in  this  regard.  American  courts  have,  for  many  years, 
applied  modem  rules  to  give  effect  to  the  intention  and  purpose 
of  the  testator.  These  modern  rules  for  interpreting  and  con- 
struing wills  are  found  largely  in  American  decisions,  coming 
as  they  have  from  eminent  and  distinguished  jurists  of  our 
country,  they  are  as  a  matter  of  fact  a  part  of  the  impor- 
tant equity  jurisprudence  of  America.  In  those  states  of  the 
United  States  in  which  the  several  legislatures  have  not  inter- 
posed by  positive  enactment,  there  still  remain  a  few  well  rec- 
ognized arbitrary  rules  that  are  applied  in  the  construction  of 
wills  and  other  instruments  where  similar  rules  of  construc- 
tion apply.  These  arbitrary  rules  often  defeat  the  manifest 
intention  of  the  testator;  particularly,  the  often  quoted  and 
readily  applied  rule  in  Shelly 's  case,  which  has  perhaps  con- 
tributed more  than  all  other  rules,  to  defeat  the  wishes  and 
purposes  of  those  who  have  attempted  to  make  disposition  of 
their  estates  by  will.  The  rule  in  Shelly 's  case  is  a  part  of 
the  law  of  the  State  of  Illinois,  and  is  in  fact  a  rule  of  property 
that  our  courts  fully  recognize  and  will  continue  to  do  so,  until 
the  legislature  sees  fit  to  abolish  that  rale.  The  words  and 
expressions  used  in  a  will  differ  materially;  the  object  and 
purpose  of  the  testator  or  testatrix  also  differ,  thus  establish- 
ing the  fact,  that  no  two  wills  are  exactly  alike.  A  certain 
guide  in  making  testamentary  disposition  of  one's  estate,  may 
be  found  in  the  statute  law  of  the  various  states;  and  par- 
ticularly, in  the  well  considered  decisions  of  the  courts  of  last 
resort.  It  is  presumed  to  be  the  universal  desire  of  men  and 
w^omen  to  bestow  their  bounty  wisely  and  well ;  and  it  may  also 
be  said,  such  seek  legally  safe  and  sound  testamentary  disposi- 
tion of  their  property.  Immense  and  great  estates  in  this  coun- 
try are  rapidly  accumulating,  consisting  of  all  kinds  and  species 
of  property,  extending  over  many  and  possibly  all  states  of  the 
Union.  This  is  the  natural  result  of  the  easy  commingling  of 
the  people  of  one  state  with  that  of  another ;  the  thrift,  identity 


112  THE  LAW  OF  ESTATES. 

or  interest  of  the  individual  with  persons,  firms  or  corpora- 
tions conducting  business  in  the  different  states.  The  testator, 
therefore,  in  making  testamentary  disposition  of  property  should 
possess  or  acquire  a  knowledge  of  the  laws  of  the  different 
states  and  the  rules  governing  the  construction  and  interpreta- 
tion of  wills.  Modern  legislation  should  aim  to  accomplish  a 
rapid  legal  system  for  the  complete  settlement  and  distribution 
of  estates  of  deceased  persons.  And  when  it  is  certain  courts 
of  probate  lack  sufficient  power  to  accomplish  this  result,  the 
legislature  should  take  notice  and  act  without  delay  to  meet 
the  exigency.  The  decisions  of  the  Illinois  supreme  court  are 
convincing  proof  of  the  strong  personnel  of  that  court  from 
its  earliest  days.  Its  careful  interpretation  of  wills  and  codicils 
has  rightly  earned  for  it  the  strongest  confidence  and  respect  of 
the  legal  profession  within  and  without  this  state.  Its  funda- 
mental rule  for  the  interpretation  of  wills  has  always  been  to 
give  effect  to  the  intention  of  the  testator  where  it  is  possible 
so  to  do  under  existing  law. 

159.  The  construction  of  wills  and  codicils  is  always  a  mat- 
ter for  the  court  and  not  for  a  jury.i 

160.  No  distinction  in  method  of  executing,  attesting  and 
proving  of  w^ills  and  codicils.  The  statute  of  Illinois  makes  no 
distinction  between  wills,  testaments  and  codicils,  in  the  method 
of  executing,  attesting  and  proving  the  same,  the  statute  directs 
how  it  should  be  done  and  should  be  closely  followed.^ 

161.  Codicils  attached  or  appended  to  considered  part  of 
will.  Such  are  taken  and  considered  as  a  part  of  the  will ;  they 
are  universally  construed  together  as  one  instrument,  if  the 
codicil  does  not  contain  any  clause  of  revocation.^ 

1— Ruffin  V.  Farmer,  72  111.  615.  Vol.   4,   pp.   1284,   1285,  and   cases 

2 — Sec.   2,  chapter  148,  "Wills. '  cited;  Vol.  5,  p.  576,  and  cases  cit- 

Starr  &  Curtis  Annotated  Statutes  ed;  Kurd's  R.  S.  of  111.,  1905,  same 

of  Illinois,  with  Jones  &  Adding-  section  and  chapter,  p.  2050. 

ton's  Supplements  thereto.    Vol.  3,  3 — Paige  on  Wills,  Sec.  462,  and 

pp.  4026  to  4033,  and  cases  cited;  authorities  cited  by  author. 


CONSTRUCTION  OF  WILLS— CONTINUED.  113 

162.  Publication  of  codicil  is  publication  of  the  will.  ''A 
publication  of  the  codicil  is  a  publication  of  the  will  in  the  fonn 
it  was  at  the  time  of  the  execution  of  the  codicil,  and  proof 
of  the  execution  of  the  codicil  establishes  the  will."* 

163.  The  general  rule  of  American  courts  for  interpreting 
wills  and  codicils.  "That  the  whole  will  takes  effect,  so  far 
as  it  is  not  inconsistent  with  the  codicil,  if  it  can  fairly  be  done, 
so  as. to  make  it  harmonize  with  the  body  of  the  will.  It  is  the 
established  rule  not  to  disturb  the  dispositions  of  the  will  fur- 
ther than  is  absolutely  necessary  for  the  purpose  of  giving 
effect  to  the  codicil.^  In  Vestal  v.  Garrett,^  the  court  expresses 
itself  in  these  words.  A  codicil  revokes  so  much  of  the  will  as  is 
inconsistent  with  it,  but  as  a  general  rule,  it  will  not  be  held  to  be 
inconsistent  beyond  the  clear  import  of  its  langTiage,  and  when 
a  devise  is  clear,  it  is  incumbent  upon  those  who  contend  it  is 
not  to  take  effect  by  reason  of  a  revocation  in  the  codicil,  to  show 
that  the  intention  to  revoke  is  equally  clear  and  free  from  doubt 
as  the  original  intention  to  devise.  Indeed,  it  may  be  stated  gen- 
erally, as  a  canon  of  construction,  that  a  clear  gift  cannot  be  cut 
down  by  any  subsequent  words,  unless  they  show  an  equally  clear 
intention.  It  may  also  be  said  to  be  an  established  principle, 
that  an  express  intention  to  make  the  alteration  in  a  will  in  one 
particular,  negatives,  by  implication  an  intention  to  alter  it 
in  any  other  respect.'^ 

164.  Technical  and  grammatical  errors,  punctuation.  Gen- 
eral intent  overrides  technical  and  grammatical  rules,  the  word 
"never"  rejected  and  "forever"  given  effect,  under  this  rule.^ 
Punctuation  is  not  regarded  in  construing  wills.'' 

4 — Duncan    v.    Duncan,    23    111.  296;   Whitman  v.  Baker,  52  N.  Y. 

364;  Fry  v.  Morrison,  159  111.  244;  46. 

Hubbard  v.  Hubbard,  198  111.  624.  8— Holiday  v.  Dixon,  27  111.  33; 

5—3  Am.  &  Eng.  Ency.  of  Law,  McNeil    v.   Caruthers,   4    111.    App. 

p.  294,  and  cases  cited.  552. 

6—197  111.  407.  9— Johnson  v.  Bank,  192  111.  543; 

7 — Greenleaf   on   Evidence,    Sec.  Crawford  v.  Burke,  201  111.  589. 
682;    Quincy    v.    Rogers,    9    Cush, 

8 


114  THE  LAW  OF  ESTATES. 

165.  Greatest  indulgence  to  the  use  of  language.    The  law 

of  Illinois  extends  the  greatest  indulgence  to  the  use  of  lan- 
guage in  a  will;  the  intention  of  the  testator  is  always  sought 
in  the  words  of  the  instrument ;  the  court  will  read  the  will  and 
the  various  expressions  therein,  in  the  sense  in  which  they  were 
employed;  courts  will  consider  the  instrument  in  the  light  of 
the  circumstances  in  which  the  testator  was  placed  when  the 
will  was  made,  and  give  effect  to  each  and  every  part  in  con- 
struing.i*^ 

166.  The  purpose  of  construction.  The  sole  purpose  of  con- 
struction of  the  instrument  is  to  find  and  declare  the  intention 
of  the  testator,  that  effect  may  be  given  to  such  intention  when 
not  contrary  to  public  policy  or  in  contravention  of  law  or  the 
rules  of  property;  the  construction  is  to  be  ascertained  from 
a  full  view  of  everything  contained  in  the  will,  giving  just 
weight  and  operation  to  each  clause  and  word  employed,  unless 
there  is  some  invincible  repugnance,  or  some  portion  of  the 
instrument  is  absolutely  unintelligible.^^ 

167.  Particular  expressions  yield  to  general  purpose.  A  will 
is  held  to  speak  from  the  death  of  the  testator.  To  this  rule, 
there  is,  however,  the  limitation,  that  when  language  is  used 
which  repels  the  presumption,  it  is  otherwise ;  and,  in  deter- 
mining that  question  the  entire  will  must  be  considered,  with 
the  specific  language  employed  in  the  clause  being  construed,  to 
find  the  true  intent  of  the  testator.  Particular  expressions  will 
not  control  where  the  whole  tenor  or  purpose  of  the  instrument 
forbids  a  literal  interpretation  of  the  specific  words.  Wills, 
like  deeds,  contracts  and  enactments,  must  be  construed  accord- 
ing to  the  intent  of  the  maker,  and  that  must  be  ascertained 


10— Wigram  on  Wills,  2  Am.  Ed.  11— Redfield  on  Wills,  334;    Ca- 

161;  Jarmin  on  Wills,  Vol.  2,  Sec.  ruthers    v.    McNeil,    97    111.    256 

733;    Decker    v.    Decker,    121    111.  Kennedy  v.  Kennedy,  105  111.  350 

341;   Bingle  v.  Voltz,  142  111.  214;  Taubenham  v.  Dunz,  125  111.  529 

Roberts   v.   Roberts,   140    111.   345;  Dickinson    v.    Dickinson,    138    111. 

Perry  v.  Bowman,  151  111.  33.  541. 


CONSTRUCTION  OF  WILLS— CONTINUED. 


115 


from  an  examination  of  the  instrument  and  all  its  provisions, 
without  the  aid  of  extraneous  testimony.^  ^ 

168.  Specific  articles  bequeathed  cannot  be  sold,  lost  or  de- 
stroyed, and  replaced  by  another  article,  unless  specifically  re- 
quired by  the  terms  of  the  will.  The  doctrine  is  firmly  settled, 
that  where  a  specific  article  is  bequeathed,  its  sale,  loss  or 


12— Redfield  on  Wills,  p.  381, 
sec.  7;  1  Jarman  on  Wills,  593; 
Cochran  v.  Cochran,  14  Sim,  248; 
Slater  v.  Norton,  16  Ves,  197; 
Abney  v.  Miller,  2  Atkins,  598; 
Goodland  v.  Burnett,  5  Kay  &  J. 
349;  Rudstone  v.  Rudstone,  2  Ves, 
418;  Coppin  v.  Fernybough,  2  B. 
C.  C.  291;  Gold  v.  Judson,  21 
Conn.  616;  Updyke  v.  Thompkins, 
100  111.  410. 

]<lote. — Judge  Redfield  clearly 
recognizes  the  law,  as  laid  down  by 
an  unbroken  line  of  authorities, 
that  while  a  general  devise  of 
property  is  presumed  to  take  ef- 
fect from  death,  that  is  not  the 
rule  in  cases  of  specific  devises  of 
personal  property.  He  says:  "Spe- 
cific gifts,  whether  of  stock  or 
other  personal  estate,  have  been 
construed  to  have  refeirence  to 
the  property  of  the  testator  then 
in  existence,  and  if  the  testator 
disposes  of  the  articles  described, 
either  in  whole  or  in  part,  and 
subsequently  acquires  more  of  the 
same  description,  the  legacy  will, 
nevertheless,  fail  as  to  all,  except 
the  portion  not  disposed  of."  The 
following  cases  hold,  that  when 
a  testator  expresses  himself  in  the 
present  tense,  it  must  relate  to 
what  is  in  being  at  the  time  of 
making  the  will.  Abney  v.  Miller, 
supra;  Goodland  v.  Burnett,  su- 
pra;   Rudstone    v.    Rudstone,    su- 


pra; Coppin  V.  Fernybough,  supra. 
And  when  a  testator  refers  to  an 
actually  existing  state  of  things, 
the  language  will  be  referred  to 
the  date  of  the  will,  and  not  to  his 
death,  as  this  is  then  a  prospec- 
tive event.  Gold  v.  Judson,  21 
Conn.  616.  In  the  case  of  Updyke 
V.  Thompkins,  supra,  the  third 
clause  of  the  will  construed  was 
"If  I  survive  my  mother,  Mary 
A.  Updyke,  it  is  my  will  that  my 
estate,  real  and  personal,  shall 
descend  and  be  distributed  in  the 
manner  as  intestate  estates  de- 
scend and  are  distributed  under 
the  laws  of  Illinois."  The  fourth 
clause  read:  "I  hold  a  number  of 
notes  against  my  brother  (nam- 
ing him) — one  of  these  notes  is 
for  $900,  and  I  intend  that  one 
to  be  cancelled  absolutely  at  my 
death,  and  given  up  to  him.  As 
to  the  others,  if  I  survive  mother 
(naming  her),  then  at  my  death 
I  want  all  the  other  notes  can- 
celled and  surrendered  to  (G.  W. 
U.)  but  if  mother  survives  me, 
then  George  must  pay  the  inter- 
est on  the  other  notes  until  her 
death,  and  then  the  other  notes 
are  to  be  cancelled  and  surren- 
dered to  him,  the  said  George; 
and  I  will  that  said  $900  note 
shall  be  given  up  as  aforesaid, 
and  I  declare  that  said  (G.  W. 
U.),    in    case    I    survive   my   said 


116 


THE  LAW  OF  ESTATES. 


destruction  cannot  be  replaced  by  substituting  another  article 
in  its  stead.  So  it  has  been  held  where  specific  stocks  are  be- 
queathed, and  are  afterwards  sold  and  another  kind  purchased 
with  the  proceeds,  the  latter  do  not  pass  by  the  bequest.  And 
so  where  a  lease  is  the  subject  of  a  bequest  for  a  term  of  years, 
if  it  is  afterwards  surrendered  and  a  new  lease  taken,  the  latter 
does  not  pass  by  the  will.  When  a  specific  article  is  bequeathed, 
another  cannot  be  substituted,  unless  specifically  required  by 
the  terms  of  the  will.^^ 

169.  Words  will  be  read  into  will  when  necessary  to  give 
intended  effect.  It  is  said  in  the  well  considered  case  of 
Welch  V.  Belleville  Savings  Bank.^"^  We  will  consider  this 
case  on  the  grounds  counsel  have  placed  it,  and  may  possibly 
then  give  some  additional  views  upon  a  phase  of  it  that  has  only 


mother,  shall  inherit  equally  in 
all  my  estate  with  my  other  heirs, 
notwithstanding  the  cancelling 
and  surrendering  of  the  said 
notes,  his  full  share  herein.  "The 
note  for  $900,  spoken  of  in  the 
will,  at  the  time  of  the  death  of 
the  testatrix,  had  already  been 
surrendered  to  the  maker  by  the 
testatrix,  and  at  the  time  of  her 
death  she  held  six  notes  upon  her 
brother;  there  being  but  one  of 
the  original  notes  remaining,  the 
testatrix  held  at  the  date  of  the 
will;  the  others  having  been  ob- 
tained afterwards.  Held,  the  tes- 
tatrix intended  to  have  only  the 
notes  held  by  her  at  the  date  of 
the  will  concelled  and  surren- 
dered, and  not  those  which  she 
might  acquire  after  that  time. 
And  further  it  is  held:  It  was 
not  the  scheme  of  the  will  to  pro- 
vide a  fund  for  the  support  of  the 
mother  of  the  testatrix,  in  case 
she  should  survive  her  daughter, 
from   the  interest  to  accrue  upon 


notes,  for  in  another  clause  of 
the  will  the  mother  was  made  the 
sole  devisee  of  all  the  property  in 
case  of  her  survivorship.  So  it 
should  not  be  understood  from 
the  clause  which  required  the 
maker  of  the  notes  to  pay  the  in- 
terest on  "the  other  notes"  to  the 
mother  in  case  she  survived  the 
testatrix,  and  upon  her  death 
"the  other  notes  to  be  cancelled 
and  surrendered"  to  the  maker, 
that  any  other  notes  than  those 
held  by  the  testatrix  at  the  date 
of  her  will  were  included. 

13—1  Redfield  on  Wills,  p.  381, 
sec.  7;  2  Jarman  on  Wills,  sec. 
593;  Cochran  v.  Cochran,  14  Sim, 
248;  Slater  v.  Norton,  16  Ves, 
197;  Abney  v.  Miller,  2  Atkins, 
593;  Goodland  v.  Burnett,  5  Kaj* 
&  J.  349;  Rudstone  v.  Rudstone, 
2  Ves,  418;  Coppin  v.  Fernybough, 
2  B.  C.  C.  291;  Gold  v.  Judson, 
21  Conn.  616;  Updyke  v.  Thomp- 
kins,  100  111.  410. 

14—94   111.  199. 


CONSTRUCTION  OF  WILLS— CONTINUED,  117 

in  part  been  suggested  by  counsel  for  appellee.  Formerly  wills 
were  not  construed  by  the  courts  with  the  liberality  they  now 
are,  in  furtherance  of  the  intention  of  the  testators.  This  is 
particularly  true  of  devises,  properly  so  called ;  and  even  now, 
in  those  States  in  which  the  legislature  has  not  interposed  by 
positive  enactment,  there  are  a  few  well  recognized  arbitrary 
rules  of  construction  that  often  defeat  the  manifest  intention 
of  testators,  among  the  most  noted  of  which  may  be  mentioned 
what  is  known  as  the  rule  in  Shelly 's  case.  The  rule  of  construc- 
tion established  by  that  most  celebrated  of  cases  has  perhaps 
contributed  more  than  all  other  causes  combined  to  defeat  the 
manifest  wishes  and  purposes  of  those  who  have  attempted  to 
make  dispositions  of  their  estates  by  will.  Subject  to  these  few 
exceptions,  however,  the  principle  is  firmly  established  and  uni- 
versally recognized  that  a  will  should  be  construed  so  as  to 
effectuate  the  intention  of  the  testator  as  far  as  possible,  and, 
in  case  of  doubt,  the  scope  of  the  instrument  should  be  consid- 
ered, and  its  various  provisions  compared,  one  with  another,  in 
ascertaining  such  intention.  To  this  fundamental  rule  of  con- 
struction all  others,  with  the  exceptions  above  noted  must  be 
subordinated.  Under  its  influence,  the  express  words  of  a  will 
must  sometimes  yield  to  the  manifest  intention  of  the  testator ; 
and  even  words  will  be  added  where  it  is  necessary  to  effectuate 
such  intention.15 

170.  But  under  pretense  of  construction  courts  have  no 
right  to  either  reject  or  supply  words,  except  where  necessary 
to  avoid  an  absurdity  or  give  effect  to  the  intention.  Courts 
under  the  pretense  of  construction  have  no  right  to  either  reject 
or  supply  words,  except  where  it  is  absolutely  necessary  to 
avoid  an  absurdity  or  give  effect  to  the  manifest  intention  of  the 
testator;  courts  have  no  right  to  make  a  will  either  by  rejecting 
some  of  its  provisions  or  by  adding  new  ones,  nor  by  placing 
upon  its  provisions  an  arbitrary  construction.     Where  the  lan- 

15— Wright  V.  Dunn,  10  Wheat.  537;    Ruston    v.    Ruston,    2    Dall. 
204;    Bartlett    v.    King,    12    Mass.  244. 


118  THE  LAW  OF  ESTATES. 

guage  of  a  will  is  clear  and  unambiguous,  and  there  is  no  con- 
flict in  the  various  provisions,  and  no  absurdity  would  thereby 
be  involved,  it  should  be  given  effect  according  to  the  literal 
terms  used,  taken  in  their  general  and  popular  sense,  except 
where  technical  terms  are  used,  in  which  case  they  should 
be  taken  in  their  technical  sense,  unless  the  context  shows 
they  are  used  in  a  different  sense.*^ 

171.  Patent  and  latent  ambiguities.  The  liberality  of  the 
law  for  construing  wills  was  intended  to  give  the  courts  the 
largest  possible  dominion  over  the  subject;  and,  where  the 
courts  are  consistent,  and  put  themselves  within  the  well  estab- 
lished rules  of  construction,  they  have  ample  power  to  fully 
give  effect  to  every  word  of  the  will  of  any  testator,  where  such 
will  is  not  affected  by  some  law  or  the  carelessness  of  the  party 
making  or  putting  the  will  in  form.  Under  one  general  class 
of  wills,  a  construction  will  be  placed  upon  the  language  used, 
without  any  assistance  from  extrinsic  circumstances,  if  in  so 
doing  the  true  meaning  and  intention  of  the  testator  can  be 
obtained.  This  rule  is  usually  applied,  where,  on  the  face  of 
the  will  an  ambiguity  arises,  called  in  the  law  patent  ambigu- 
ity. When  the  courts  are  called  upon  and  find  such  ambiguity, 
they  will  apply  the  language  of  the  testator  or  testatrix,  with 
the  express  purpose  of  giving  effect  to  their  intentions  mani- 
fested in  the  instrument,  without  the  aid  or  assistance  of 
extrinsic  circumstances.     In  the  other  general  class  of  wills, 

16 — Dows  V.  Swan,  4  Mass.  208;  does  not  give  absolute  fee."   When 

Welch  V.  Belleville  Savings  Bank,  "property  devised  for  life  must  be 

94    111.    199.  converted  into  money."     The  rule 

2^ote. — The  latter  case  is  dis-  supporting  this  doctrine  and  its 
cussed  in  chapter  50  of  this  work,  extension  as  originally  applied  by 
"Reversions  and  Remainders."  the  courts,  in  the  absence  of  ex- 
Several  important  legal  questions  press  language,  or  other  intention 
are  raised  and  passed  upon  by  to  be  drawn  from  the  will,  and  its 
Justice  Mulkey,  viz.:  "As  to  char-  application  to  remainder-man's 
aoter  of  estate  devised  by  the  rights.  "Remainder  in  chattels 
will."  "When  limitation  over  is  with  limitation  over,"  etc.  "Ex- 
void."     "When   power  of   disposal  ecutory  gift"  and  rule  applied  to 

same,  etc. 


CONSTRUCTION  OF  WILLS— CONTINUED.  119 

the  court  in  order  to  construe  the  instrument,  regular  on  its 
face,  finding  it  ambiguous  seeks  assistance  by  obtaining  evi- 
dence of  extrinsic  circumstances  in  aid  of  its  construction; 
the  latter  class  of  wills  are  said  in  the  law  to  contain  latent 
ambiguities.  And  when  such  appear,  the  court  for  the  purpose 
of  giving  effect  to  the  whole  will,  seek  evidence  to  assist  the 
construction  and  to  establish  the  intention  of  the  testator. 

172.  Latent  ambiguity  is  only  disclosed  by  extrinsic  evi- 
dence. And  if  removable  at  all,  it  may  be  removed  by  extrinsic 
evidence.* ''^  Redfield  mi  'Wills}^  The  latter  says:  "That  where  the 
description  of  the  object  or  subject  of  a  devise  is  erroneous  and 
mistaken,  extrinsic  evidence  is  admitted  to  aid  the  construction, 
by  showing  to  whom  or  to  what  the  testator  must  have  re- 
ferred." Chief  Justice  Tindal,  in  the  case  of  Miller  v.  Travers,^^ 
defines  latent  ambiguities,  which  might  be  explained  by 
parol  in  two  classes.  First:  "Where  the  description  of  the 
devise  or  subject  matter  of  devise  is  clear  on  the  face  of  the 
will,  but  on  inquiry  it  is  found  that  the  words  describe  two  or 
more  persons  or  things  with  equal  accuracy,  so,  unless  it  can 
be  shown,  by  extrinsic  evidence,  to  which  the  testator  intended 
his  words  to  apply,  the  devise  must  fail  for  uncertainty. 
Second :  Where  the  description  of  the  devise  or  of  the  devisee 
is  correct  in  part  and  in  part  incorrect,  as,  where  devisee's 
name  is  correctly  given,  but  his  residence,  or  some  other  cir- 
cumstance descriptive  of  the  person  or  thing  incorrect." 

173.  Ambiguity  explained  and  further  defined.  Justice 
Bradley  in  the  case  of  Patch  v.  White,^^  speaking  for 
the  court,  said:  "It  is  settled  doctrine,  an  ambiguity  may 
arise  upon  a  will,  either  when  it  names  a  person  as  the  subject 
of  the  gift,  or  a  thing  as  the  subject  of  it,  and  there  are  two 
persons  or  things  that  answer  such  name  or  description;  or 

17— Patch   V.   White,    117    U.    S.        19—8  Bing.  244. 
210.  20—117  U.  S.  210. 

18— Redfield    on    Wills,    Vol.    1, 
p.  584,  and  cases  cited. 


120  THE  LAW  OF  ESTATES. 

secondly,  it  may  arise  when  the  will  contains  a  misdescription 
of  the  object  or  subjeetj  as,  where  there  is  no  such  person  or 
thing  in  existence,  or,  if  in  existence,  the  person  is  not  the 
one  intended,  or  the  thing  does  not  belong  to  the  testator." 
The  first  kind  of  ambiguity,  where  there  are  two  persons  or 
things  equally  answering  the  description,  may  be  removed  by 
any  evidence  that  will  have  that  effect,  or  by  either  circum- 
stances, or  declarations  of  the  testator.21  "Where  the  ambiguity 
consists  of  a  misdescription,  as  before  stated,  if  the  misdescrip- 
tion can  be  struck  out,  and  enough  remains  in  the  will  to  identify 
the  person  or  thing,  the  court  will  deal  with  it  in  that  way ;  or  if 
it  is  an  obvious  mistake,  will  read  it  as  if  corrected.--  The 
rules  cited  relating  to  ambiguities  have  been  adopted  and 
applied  by  the  Illinois  courts.^^  Authorities  in  point  under 
the  statutory  requirements  of  Illinois,  providing  that  wills 
and  testaments  must  be  in  writing  and  properly  witnessed, 
hold  that  extrinsic  evidence  is  never  admissible  to  alter,  de- 
tract from  or  add  to  the  terms  of  a  will.  So  if  the  words 
used  are  ambiguous,  the  words  of  a  will  cannot  be  varied  by 
evidence  of  extraneous  facts,  however  clearly  a  different  in- 
tention may  appear. ^^  And  the  Illinois  authorities  hold  to  this 
rule:  "When  there  is  a  latent  ambiguity  in  the  description  of 
the  object  or  subject  of  the  gift,  and  such  ambiguity  can  be 
removed  by  rejecting  false  words,  leaving  a  complete  intelligible 
description,  it  is  the  duty  of  the  court  to  do  so,  as  when  there 
are  two  descriptions,  one  good  and  the  other  bad,  the  latter  may 
be  rejected.  And  when  such  can  be  done  the  introduction  of 
parol  evidence  to  explain  the  intention  of  the  testator  is  un- 
necessary. 


25 


21—1    Jarman    on    Wills,    370;  552;  Bradley  v.  Rees,  113  111.  327. 

Hawkins  on  Wills,  910.  24— Kunz  v.  Hibner,  55  111.  514; 

22— Patch   V.    White,    117   U.    S.  Bishop    v.    Morgan,    82    111.    351; 

210.  Bingel  v.  Volz,  142  111.  214;   Wil- 

23— Emmert    v.    Hayes,    89    111.  liams   v.   Williams,    189    111.    500; 

12;    Bowen  v.   Allen,   113   111.   53;  Vestal  v.  Garrett,  197  111.   398. 

Decker    v.    Decker,    121    111.    341;  25 — Emmert    v.    Hayes,    89    111. 

Transportation  Co.  v.  Gill,  111  111.  11;    Myers   v.    Ladd,    26    111.    415; 


CONSTRUCTION  OF  WILLS— CONTINUED. 


121 


174.  Facts  dehors  the  will.  When  the  subject  of  the  power 
is  realty,  and  the  question  is  as  to  the  execution  of  the  power 
by  the  devise,  it  is  the  well  established  doctrine,  you  may  al- 
ways look  at  the  conditions  of  the  property  and  the  facts 
dehors  the  will,  to  arrive  at  the  intention  of  the  testator.2<5 

A  recital  in  a  will  referring  to  certain  property  as  "having 
theretofore  deeded";  and  the  facts  show  the  deed  referred  to 
was  enclosed  in  an  envelope  and  given  to  a  custodian  to  be 
delivered  after  the  grantor's  death, — but  with  the  reservation 
that  the  grantor  retained  the  right  to  recall  it,  is  not  delivered, 
and  cannot  operate  as  a  deed  delivered;  nor  under  this  condi- 
tion of  facts,  does  the  recital  in  the  will  aid  in  establishing  that 
there  was  a  valid  delivery  of  the  deed  so  as  to  make  it  opera- 
tive.2'^ 

175.  Will  devising  real  estate.  In  whatever  language  the 
will  is  written,  it  is  construed  according  to  the  law  of  the  place 


Swift  V.  Lee,  65  111.  336;  Bowen  v. 
Allen,  113  111.  53;  Decker  v.  Deck- 
er, 121  111.  341;  Witcomb  v.  Wil- 
liams, 189  111.  500;  Vestal  v.  Gar- 
rett,   197    111.    405. 

Note. — In  Vestal  v.  Garrett,  su- 
pra, the  authorities  are  reviewed 
and  harmonized;  the  rule  and  the 
application  thereof  cited,  as  it  re- 
lates to  other  questions  arising 
under  the  will  construed.  Thus, 
it  is  held:  "Unambiguous  words 
cannot  be  varied  by  evidence  of 
extraneous  facts."  That  "false 
words  of  description  may  be  re- 
jected under  rules  of  construc- 
tion." The  decision  giving  illus- 
trations when  rule  is  applied  for 
the  purpose  of  removing  ambi- 
guity by  rejecting  false  words  of 
description.  And  it  is  also  laid 
down  under  rule  cited,  that  a  pro- 
vision  of  a  will  not  inconsistent 
with  the  codicil  thereto,  must  be 
given  effect.   The  rule  being  stated 


from  Paige  on  Wills,  sections  462, 
as  follows:  "Where  a  codicil  is 
appended  to  a  will  and  does  not 
contain  any  clause  of  revocation, 
the  provisions  of  the  will  are  to 
be  disturbed  only  as  far  as  is  ab- 
solutely necessary  to  give  effect  to 
the  provisions  of  the  codicil,  and 
in  other  respects  such  a  will  and 
codicil  are  to  be  construed  to- 
gether." Held,  A  codicil  which 
devises  land  which — by  the  will 
had  already  been  given  in  fee  to 
a  daughter — to  the  testator's  wife, 
"for  her  sole  use  and  benefit  dur- 
ing her  life,"  but  which  makes  no 
disposition  of  the  remainder, 
leaves  such  remainder  still  in  the 
daughter.  See  also  chapter  50  of 
this  work,  "Reversions  and  Re- 
mainders." 

26— Funk  v.  Eggleston,  92  IlL 
538. 

27— Noble  v.  Tipton,  219  111.  182, 
and  cases  cited  in  the  opinion. 


122  THE  LAW  OF  ESTATES. 

or  state  where  the  real  estate  is  situated.  Further  elaboration 
of  this  rule  being  unnecessary,  as  the  devising  of  real  estate 
will  appear  in  many  ways  and  forms  in  wills  construed  and 
under  the  proper  heading  relating  thereto.^^ 

176.  Will  devising  personalty  is  governed  by  the  lex  domi- 
cili,  the  place  of  residence  of  the  deceased  person,  in  the 
county  and  state  fixed  by  statute  law  of  Illinois  for  the  pro- 
bating of  wills.29 

177.  Words  of  inheritance  not  necessary  to  convey  fee — 
requisites  of  rule  in  Shelly 's  case.  Section  13  of  chapter  30, 
entitled  "Conveyances,"  is  as  follows:  Every  estate  in  lands 
which  shall  be  granted,  conveyed  or  devised,  although  other 
words  heretofore  necessary  to  transfer  an  estate  of  inheritance 
be  not  added,  shall  be  deemed  a  fee  simple  estate  of  inheri- 
tance, if  a  less  estate  be  not  limited  by  express  words,  or  do 
not  appear  to  have  been  granted,  conveyed  or  devised  by  con- 
struction or  operation  of  law.^'' 

In  Baker  v.  Scott,^'^  it  is  said:  This  section  does  not 
abolish  or  affect  the  rule  in  Shelly 's  case,  which  is  a  part  of 
the  common  law,  in  force  in  this  state,  it  being  in  harmony  with 
the  genius  of  our  institutions,  and  not  in  conflict  with  any  stat- 
utory provision.  ''The  requisites  of  the  rule  in  Shelly 's  case 
are,  that  there  must  in  the  first  instance,  be  an  estate  of  free- 
hold devised;  there  must  be  a  limitation  to  the  heirs,  or  heirs 

28 — Section  13,  chapter  30,  "Con-  Addington's    Supplements   thereto, 

veyance"  Act.    Starr  &  Curtis  An-  Vol.   3,   p.   4041,   and   cases  cited; 

notated   Statutes  of   Illinois,   with  Kurd's   R.    S.    of   111.,    190C,   same 

Jones  &  Addington's  Supplements  section  and  chapter,  p.  2052. 

thereto.     Vol.  1,  p.  925,  and  cases  30 — Starr    &    Curtis    Annotated 

cited;    Vol.    4,    p.    255,    and    cases  Statutes  of  Illinois,  with  Jones  & 

cited;    Vol.    5,    p.    116,    and    cases  Addington's    Supplements   thereto, 

cited;    Kurd's  R.   S.   of   111.,   1905,  Vol.    1,    p.    925,    and    cases   cited; 

same  section  and  chapter,  p.   466.  Vol,    4,    p.    255,    and    cases   cited; 

29 — Section      11,      chapter     148,  Vol.    5,    p.    116,    and    cases    cited. 

"Wills."   Starr  &  Curtis  Annotated  Kurd's   R.    S.    of   111.,   1905,   same 

Statutes  of  Illinois,  with  Jones  &  section  and  chapter,  p.  466. 

31—62   111.  86. 


CONSTRUCTION  OF  WILLS— CONTINUED.  123 

of  the  body  of  the  person  taking  that  estate,  by  that  name,  and 
not  to  the  heirs  as  meaning  or  explained  to  be  sons,  children, 
etc. ;  the  heirs  must  be  named  to  take  as  a  class  or  denomina- 
tion of  persons  in  succession  from  generation  to  generation, 
and  by  way  of  remainder,  or  at  least,  so  that  the  estate  to  arise 
from  the  limitation  to  the  heirs,  and  the  estate  of  freehold  in 
the  ancestor  shall  both  owe  their  effect  to  the  same  deed,  will 
or  writing ;  and  that  the  several  limitations  shall  give  interests 
of  the  same  quality,  both  legal  or  both  equitable.  The  rule 
does  not  apply  when  the  words  lawful  issue,  sons  or  children, 
are  used,  instead  of  the  words  'heirs,'  because  those  words 
are  regarded  as  words  of  purchase,  and  not  of  limitation ;  and 
the  ancestor,  when  such  words  are  used,  will  take  only  a  life 
estate,  and  his  sons  and  children  will  take  by  purchase,  or  un- 
der the  will,  for  the  reason  that  they  are  a  designation  of  per- 
sons to  take  originally  in  their  own  right.  When  taking  in 
character  of  heir,  he  must  take  in  quality  of  heir,  that  is  by 
descent."  This  application  of  the  statute  of  Illinois  is  con- 
firmed and  carried  out.^^ 

32 — West  V.  Fitz,  109  111.  425;  named  person  without  the  use  of 
Lehndorf  v.  Cope,  122  111.  317;  the  words  "heirs  and  assigns,"  the 
Carpenter  v.  Van  Orlinder,  128  devisee  will  take  an  estate  in  fee 
111.  187;  Lomax  v.  Shinn,  162  111.  simple  unless  a  less  estate  is  lim- 
127;  Lombard  v.  Witbeck,  173  IlL  ited  by  express  words  in  a  subse^ 
405;  McFarland  v.  McFarland,  177  quent  part  of  the  will  or  by  con- 
Ill.  215;  Anderson  v.  Anderson,  struction  or  operation  of  law.  So 
191  111.  102;  Summers  v.  Highley,  a  provision  in  a  will  that  the  resi- 
191  111.  196;  Gannon  v.  Peterson,  due  of  the  testator's  estate  "shall 
193  111.  378;  Seager  v.  Bodie,  181  become  vested  in  my  adopted  son 
111.  518;  Smith  v.  Kenny,  89  111.  (naming  same),  and  I  hereby 
App.  297;  Davis  v.  Ripley,  194  111.  give,  devise  and  bequeath  to 
401;  Thomas  v.  Miller,  161  111.  68;  ....  my  son  aforesaid,  all  the 
Metzen  v.  Schopp,  202  111.  283;  residue  of  my  estate,  ....  to 
Turner  v.  Hause,  199  111.  469;  him  and  the  heirs  of  his  body  for- 
Brown  v.  John,  201  111.  295;  Riss-  ever,"  passes  a  life  estate,  only, 
man  v.  Wierth,   220  111.  181.  to  the  son,  with  remainder  to  heirs 

Isfote. — In  Metzen  v.  Schopp,  su-  of    his    body.      Also,    the    words 

pra,  it  was  held  a  fee  may  be  lim-  "Without  leaving  issue,"  used  in  a 

ited  by  a  subsequent  part  of  a  will,  clause  of  a  will  providing  a  dis- 

Thus,  if  an  estate  is  devised  to  a  position  of  property  in  case  of  tha 


124 


THE  LAW  OF  ESTATES. 


178.  Where  devises  are  made  to  trustee.  The  general  rule 
in  regard  to  wills  is,  that  a  trust  estate  is  not  to  continue  be- 
yond the  period  required  for  the  purpose  of  the  trust;  and  it 
makes  no  difference  whether  the  limitation  to  the  trustee  be  in 
fee  or  otherwise.  But  this  general  rule  is  subject  to  the  qual- 
ification, that  such  rule,  when  applied,  shall  be  consistent  with 
the  intention  of  the  party  creating  the  trust,  as  manifested  by 
the  words  used  in  the  instrument  by  which  the  trust  is  created. 
The  instrument  itself  will  be  construed  for  the  express  purpose 
of  carrying  out  the  intention  of  the  testator  as  expressed  by  the 
language  of  the  will.  In  the  cases  cited,  it  is  held,  that  not- 
withstanding the  devise  is  to  the  trustee  in  fee,  the  trustee  took 
a  chattel  interest  only,  for  as  many  years  as  the  minority  of 
the  devise  might  last ;  and  the  estate  over  is  a  vested  remainder 
and  may  or  may  not  under  the  language  used  fall  within  the 
statute  of  uses.-^3 


death  of  the  testator's  son  without 
leaving  issue,  mean  without  leav- 
ing issue  at  the  death  of  the  son, 
and  import  a  definite  failure  of  is-, 
sue.  Smith  v.  Kimbell,  153  111. 
368;  Strain  v.  Sweeney,  163  111. 
603.  See  chapter  50  of  this  work, 
"Reversions  and  Remainders." 
So  if  a  clause  in  a  will  provides 
that  the  sole  survivor  of  the  three 
devisees  shall  be  "the  sole  owner 
in  fee  of  all  said  premises,"  the 
fee  simple  title  is  not  reduced  to  a 
life  estate  by  reason  of  the  further 
declaration  that  "he  shall  con- 
tinue to  be  such  owner  during  the 
rest  of  his  life."  A  testator,  after 
devising  an  estate  in  fee,  cannot 
take  from  such  estate  the  quality 
of  inheritance  or  the  right  of  the 
owner  to  alien  the  estate.  Bowen 
V.  John,  201  111.  292.  See  also 
12  Am.  &  Eng.  Ency.  of  Law,  2d 
ed.,  890.  Illinois  Mutual  Ins.  Co. 
V.    Marseilles   Manf.    Co.,    1    Gilm. 


(111.)  236;  Wicker  v.  Ray,  118  111. 
472;  Giles  v  Anslow,  128  111.  187; 
Davis  v.  Ripley,  194  111.  399;  Wal- 
ker V.  Pritchard,  121  111.  221; 
Jones  v.  Port  Huron  Engine  and 
Thresher  Co.,  171  111.  502.  A  char- 
acteristic of  a  base  or  determin- 
able fee  is,  that  upon  the  happen- 
ing of  a  named  event  or  the  per- 
formance of  a  named  condition 
the  title  conveyed  is  confirmed  as 
a  title  in  fee  simple.  Lombard  v. 
Witbeck,  173  111.  396;  Summers  v. 
Smith,  127  111.  645;  Strain  v. 
Sweeny,  163  111.  603;  Smith  v, 
Kimball,  153  111.  368.  And  see 
and  compare  Bergan  v.  Cahill,  55 
111.  160;  Walker  v.  Pritchard,  121 
id.  221;  Siddons  v.  Cockrell,  131 
id.  653;  Johnson  v.  Johnson,  98 
id.  564;  Healy  v.  Eastlake,  152  id. 
424;  Thomas  v.  Miller,  161  id.  60. 
33— Kirkland  v.  Cox,  94  111.  400; 
Starr  v.  Moulton.  97  111.  525; 
Preachers'    Aid     Society    v.    Eng- 


CONSTRUCTION  OF  WILLS— CONTINUED. 


125 


179.  Repugnant  clauses.  Conditions  that  are  repugnant  to 
the  estate  to  which  they  are  annexed  are  absolutely  void.-*^^  The 
Illinois  authorities  when  applying  this  rule  of  construction,  con- 
sider all  the  words  of  the  will,  including  its  provisions  and  con- 
ditions, for  the  purpose  of  ascertaining  what  estate  the  testator 
intended  to  confer  by  the  granting  words  of  the  will;  and  of 
two  repugnant  clauses,  the  latter  will  prevail  in  a  will;  it  will 
be  regarded  as  intended  to  modify  the  former  where  they  are 
simply  inconsistent  in  part.^^ 


land,  106  111.  125;  Kellogg  v.  Hale, 
108  111.  164.  See  also  chapters 
12  and  13  of  this  work,  "Trusts 
and   Trustees." 

'Note. — A  devise  of  an  estate, 
real  and  personal,  after  the  pay- 
ment of  debts,  etc.,  to  trustees, 
with  power  "to  make  such  disposal 
of  the  estate  as  shall,"  in  the  Judg- 
ment of  the  trustees,  "benefit  and 
increase  the  value  of  said  estate," 
and  imposing  the  duty  of  paying 
to  the  testator's  daughter  "such 
installments  of  money  as  in  the 
judgment  of  said  trustees  shall  be 
proper,  and  sufficient  to  meet  her 
current  expenses  and  provide  an 
ample  and  comfortable  support," 
necessarily  implies  the  power  to 
sell  the  lands  of  the  testator  and 
convert  them  into  money  or  in- 
terest bearing  securities,  and  the 
power  implied  to  sell  is  to  sell  the 
whole  title,  and  to  this  is  essen- 
tial the  power  to  convey  that  title, 
requiring  as  a  condition  precedent 
a  fee  simple  estate  in  the  trus- 
tees, Kirkland  v.  Cox,  supra.  In 
the  same  case,  the  line  of  authori- 
ties are  given  in  the  opinion  by 
Justice  Schofield.  as  to  when  the 
statute  of  uses  executes  the  trust 


created  and  the  exceptions  to  the 
operation  of  the  statute  of  uses. 
See  pp.  411  to  414.  The  opinion  in 
Kellogg  V.  Hale,  supra,  by  Justice 
Craig,  arises  on  a  bill  in  equity  to 
compel  a  conveyance  of  land.  The 
opinion  defining  when  the  statute 
of  uses  executes  and  passes  legal 
title  to  the  person  for  whose  use 
made.  The  court  holding  in  that 
case,  that  it  is  the  settled  law  of 
England  and  this  country,  that  a 
conveyance  of  property  from  a 
husband  to  his  wife,  when  made 
as  a  provision  for  her,  will  be  sus- 
tained and  upheld  in  courts  of 
equity,  where  the  rights  of  credi- 
tors are  not  affected  by  such 
transaction.  See  cases  cited  on 
pp.  168,  169  of  opinion. 

34— Jarman  on  Wills,  810;  4 
Kent's    Com.,    sections    131,    270. 

35— Bromfield  v.  Wilson,  78  111. 
467;  Johnson  v.  Johnson,  98  111. 
570;  Murfit  v.  Jessop,  94  111,  158; 
City  of  Peoria  v.  Dant,  101  111. 
609;  Bland  v.  Bland,  103  111.  11; 
Henderson  v.  Blackburn,  104  111, 
227;  Friedman  v.  Steiner,  107  111. 
125;  Hamlin  v.  U.  S.  Express  Co., 
107  111.  443;  Noble  v.  Tipton,  219 
111,  182, 


126  THE  LAW  OF  ESTATES. 

180.  In  Brownfield  v.  Wilson,^^  the  testator  by  one 
clause  of  his  will  gave  to  his  wife  a  forty  acre  tract  of  land  in 
fee;  and  by  a  subsequent  clause  he  gave  to  his  children,  to 
share  equally  and  alike  in  his  real  estate ;  the  real  estate  to  be 
sold  after  his  wife's  death.  In  construing  the  will,  the  court 
said :  ' '  We  are  clearly  of  opinion,  that  the  second  clause  must 
be  read  as  devising  to  the  persons  named  the  remainder  of  his 
real  estate,  after  excluding  the  forty  acres  named  in  the  first 
clause.  This  seems  to  us  the  most  reasonable  interpretation 
that  can  be  given  to  this  clause,  when  considered  in  connection 
with  the  first." 

181.  In   Friedman   v.    Steiner,^"^    a   testator    after   making 
certain  bequests,  devised  the  residue  of  his  estate  to  his  wife; 
"and  unto  his  heirs  and  assigns  forever,  to  the  total  exclusion 
of  any  and  all  persons  whatsoever,"  but  upon  the  express  con- 
dition that  in  case  the  wife  should  die  intestate,  and  without 
leaving  her  surviving  lawful  issue,  then  all  the  rest  and  residue 
of  the  estate  so  bequeathed  to  the  wife  should  be  converted 
into  money,  and  paid  over  by  his  executors,  as  follows:     To 
A,  $5,000,  to  B,  $1,000,  etc.    Held,  that  the  estate  of  the  wife  in 
the  realty  was  not  a  mere  life  estate  with  power  to  dispose  of 
the  fee  by  will,  as  that  could  not  be  inherited,  nor  was  it  an 
estate  in  fee  simple,  as  it  could  not  descend  to  her  heirs  gen- 
erally, but  to  the  heirs  of  her  body;  that  the  estate  granted 
the  wife,  was  an  estate  in  fee  determinable,  which  may  be  per- 
petual, or  may  be  determined  by  her  death  intestate,  without 
lawful  issue,  or  previous  alienation  of  the  land.    A  clear  power 
of  sale  conferred  by  will  can  be  restricted  only  by  subsequent 
explicit  words.     Courts   will  not  interfere  with  discretionary 
powers  of  trustees  except  for  fraud.     It  is  also  held,  benefi- 
ciaries cannot  disaffirm  sale,  and  retain  the  purchase  money, 
and  the  purchaser  is  not  bound  to  look  to  the  application  of  the 
purchase  money  where  power  of  sale  is  discretionary.^^ 

36—78  111.  467.  38— Dickson  v.  N.  Y.  B.  Co.,  211 

37—107  111.  125.  111.    468. 


CONSTRUCTION  OP  WILLS— CONTINUED.  127 

182.  Life  estate  power  of  sale.  A  power  of  sale  exists  by 
or  under  the  will  only;  it  may  be  expressed  by  the  language 
of  the  will  or  it  may  be  implied  according  to  the  construction 
given  the  will  in  the  absence  of  an  expressed  power  to  give 
effect  to  the  testator's  intention.  What  is  a  life  estate  is  often 
a  subject  of  controversy  growing  out  of  the  language  of  the 
will.  The  courts  universally  hold  that  a  devise  in  fee  in  one 
clause  of  the  will  may  be  restricted  by  other  parts  of  the 
will  to  a  life  estate;  and  when  such  appears  by  the  language 
of  the  will,  they  will  not  enlarge  a  life  estate  to  a  fee.  The  fol- 
lowing cases  construing  wills  contain  an  express  power  of  sale 
or  a  power  of  sale  is  implied  from  the  language  used  in  the  will ; 
the  cases  cited  also  make  a  distinction  between  a  devise  in  fee 
and  one  for  life ;  they  are  also  striking  illustrations  of  the  ap- 
plication of  the  general  rule,  "the  intention  of  the  testator  gath- 
ered from  a  consideration  of  the  whole  will,  must  prevail  over 
technical  expressions  and  individual  clauses  in  the  will.''^^ 

183.  In  Henderson  v.  Blackburn,^^  a  devise  for  life  to 
**  occupy  and  use  the  same,  or  dispose  of  it  and  use  and  con- 
trol the  proceeds  thereof,"  confines  the  power  of  sale  to  the 
life  interest. 

184.  In  Green  v.  JSewett,'^'^  it  was  held:  A  life  estate 
was  created  subject  to  being  terminated  by  marriage, 
where  the  language  of  the  will  was,  "the  farm  on  which  we 
now  reside,  also  my  personal  property  so  long  as  she  remains 
my  widow";  at  the  expiration  of  that  time,  the  whole,  or 
whatever  remains,  to  descend,  etc.  Held,  the  words  -'what- 
ever remains"  applied  to  the  personal  estate  only. 

39 — Welsch  v.  Belleville  Savings  Henderson   v.    Blackburn,    104   111. 

Bank,  94  111.  191;  Funk  v.  Eggles-  229;    McCall  v.  Lee,   120   111.   268; 

ton,  92  111.  515;  Markillie  v.  Rag-  Griffin  v.  Griffin,  125  111.  431;  Clif- 

land,  77  111.  101;  Johnson  v.  John-  ford   v.    Davis,    22    111.   App.    316; 

son,  95  111.  569;  Mather  v.  Mather,  Cashman's  Will,  28  111.  App.  351; 

103  111.  608;  Belslay  v.  Engle,  107  Dickson  v.   N.  Y.  B.   Co.,   211  lU. 

111.    184;    Ryan   v.    Allen,    120   111.  468. 

653;  Railsback  v.  Lovejoy,  116  111.  40—104  111.  229. 

442;  Cheney  v.  Teese,  108  111.  473;  41—97  111.  117. 


128  THE  LAW  OF  ESTATES. 

185.  In  Kirkpatrick  v.  Eirkpatrick^^  A  will  gave 
the  wife  a  life  estate,  with  power  to  manage,  rent,  or 
sell,  and  recites  that  after  her  death,  "if  not  already  dis- 
posed of,"  it  shall  go  to  certain  persons  in  remainder;  held, 
the  phrase  quoted  does  not  enlarge  the  power  of  disposition, 
so  as  to  authorize  a  testamentary  disposition  by  the  life  tenant. 

186.  In  Chapin  v.  Crmv.^^  A  grant  to  a  person 
named  for  and  during  his  natural  life,  and,  upon  his  death, 
then  to  his  sons^  gives  the  person  named  a  life  estate. 

The  will  of  A  devised  his  property  to  his  wife,  *'to  hold  and 
have  to  her,  my  said  wife,  and  to  her  heirs  and  assigns  for- 
ever, but  if  she  gets  married  again,  then  at  the  time  of  her 
second  marriage  one-half  of  said  estate,  real  and  personal,  to 
be  sold  and  divided  as  follows,  etc.,"  passes  a  fee  simple  to 
the  widow,  notwithstanding  a  subsequent  clause  attempting 
to  limit  her  interest  to  a  life  estate.** 

187.  In  Bowerman  v.  Sessel.'^^  A  testator  left  his 
homestead  to  his  wife  during  life,  and  devised  that  all 
his  property,  real,  personal  and  mixed,  be  put  on  interest  for 
the  wife's  benefit,  and  that  at  any  time  she  might  have  any 
additional  amount  which  the  executor  should  decide  she 
needed.  The  testator  further  provided,  that  after  his  wife's 
death  the  homestead  should  be  sold  and  certain  legacies  paid, 
and  that  his  wife  should  have  his  life  insurance  to  use  as  she 
saw  fit,  and  then  gave  "all  balance  of  my  estate  to  my  wife 
to  distribute  as  she  sees  fit  after  her  death."  Held,  that  this 
last  provision  was  valid,  and  gave  the  wife  only  a  life  estate, 
with  power  of  disposition. 

188.  In  Walker  v.  Pritchard,^^  it  was  held:  That 
a  life  estate  in  personal  property  gives  the  donee  a  right 
to  consume  such  articles  as  cannot  be  enjoyed  without  con- 


42—197   111.   144. 

45—191  111.  651. 

43—147    111.    219. 

46—121  111.  221. 

44 — Rissman  v.  Wierth, 

220  111. 

181. 

CONSTRUCTION  OF  WILLS— CONTINUED.  129 

sumption,  and  to  wear  out  by  use  such  as  cannot  be  used  with- 
out destroying  them. 

189.  Fee-tail — life  estate  to  grantee — remainder  in  fee  to 
successor  in  tail — application  of  the  rule  in   Shelly 's  case. 

Section  6  of  chapter  30,  entitled  "Conveyances,"  provides: 
' '  In  cases  where,  by  the  common  law,  any  person  or  persons 
might  hereafter  become  seized  in  fee  tail  of  any  lands,  tene- 
ments or  hereditaments,  by  virtue  of  any  devise,  gift,  grant  or 
other  conveyance,  hereafter  to  be  made,  or  by  any  other  means 
whatsoever,  such  person  or  persons,  instead  of  being  or  becom- 
ing seized  thereof  in  fee  tail,  shall  be  deemed  and  adjudged  to 
be,  and  become  seized  thereof,  for  his  or  her  natural  life  only, 
and  the  remainder  shall  pass  in  fee  simple  absolute,  to  the 
person  or  persons  whom  the  estate  tail  would,  on  the  death 
of  the  first  grantee,  devisee,  donee  in  tail,  first  pass,  according 
to  the  course  of  the  common  law,  by  virtue  of  such  devise, 
gift,  grant  or  conveyance.  "^'^ 

190.  In  Frazer  v.  Supervisors,'^^  the  statute  quoted 
is  applied,  the  court  saying:  "It  was  obviously  the  purpose 
of  the  general  assembly,  in  adopting  the  sixth  section,  to  pre- 
vent the  tying  up  of  titles  in  perpetuity  by  entails.  This  man- 
ifestly is  the  first  purpose ;  and  another  was  to  carry  out  the 
intention  of  the  grantor  in  making  the  conveyance,  that  the 
land  should  go  in  remainder  to  the  particular  persons  desig- 
nated in  the  deed.  The  artificial  and  highly  technical  rules 
of  the  ancient  common  law  are  not  known  or  understood  by 
the  people  generally,  or  by  the  great  majority  of  persons  who 
are  called  upon  to  prepare  conveyances;  and  hence,  it  was 
also  the  purpose  of  this  statute  to  more  effectually  carry  out 
the  intention  of  the  parties.  But  few  understand  the  rule  in 
Shelly 's  case,  which  is  defined  to  be,  "in  any  instrument,  if  a 

47 — Starr  &  Curtis  Annotated  cited;  Vol.  4,  p.  254,  and  cases 
Statutes  of  Illinois,  with  Jones  &  cited;  Vol.  5,  p.  116,  and  cases 
Addington's  Supplements  thereto,  cited;  Kurd's  R.  S.  of  111.,  1905, 
Vol.    1,    pp.    917,    918,     and     cases    same  section  and  chapter,  p.  464. 

48—74  111.  287. 


130  THE  LAW  OF  ESTATES. 

freehold  is  limited  to  the  ancestor  for  life,  and  the  inheritance 
to  his  heirs,  either  mediately  or  immediately,  the  first  taker 
takes  the  whole  estate;  if  it  be  limited  to  the  heirs  of  his 
body,  he  takes  a  fee  tail;  if  to  his  heirs,  a  fee  sim- 
p2g_"49  "The  general  assembly  must  have  intended  to 
refer  to  all  estates  tail  created  by  the  statute  de  donis. 
They  speak  of  persons  becoming  seized  o"f  such  estates 
by  the  common  law,  when  we  have  seen  that  estates  tail 
grew  out  of  the  statute  de  donis,  and  not  out  of  the  common 
law.  The  object  of  our  statute  was  to  convert  the  estate  tail 
in  the  donee  into  an  estate  for  life^  and  in  the  person  who 
would  first  take  under  the  grant  into  an  estate  in  fee  simple 
absolute,  and  thus  cut  off  the  reversion  to  the  donor  expectant 
on  the  failure  of  issue  of  the  donee,  of  this  class  designated  in 
the  instrument  conveying  the  land,  and  to  vest  the  fee  in  the 
first  taker.  The  last  clause  of  the  section,  in  declaring  that 
the  fee  should  pass  according  to  the  course  of  the  common 
law,  by  virtue  of  the  instrument  creating  the  estate,  is  mani- 
festly intended  in  the  same  manner  as  the  reference  to  the 
common  law  in  the  first  clause  of  the  section.  It  could  not 
have  been  intended  to  so  limit  or  qualify  the  provision  as  to 
the  manner  the  heir  should  take,  else  other  and  very  different 
language  would  have  been  employed."  In  Belslay  v. 
Engle,^^  it  is  said:  The  rule  in  Shelly 's  case,  is  at  most 
a  technical  rule  of  construction,  and  must  give  way  to  the 
clear  intention  of  the  testator  or  donor,  where  that  intention 
can  be  ascertained  from  the  instrument  in  which  the  words 
supposed  to  be  words  of  limitation  are  used."^ 

49 — Preston   on  Estates,   section  The    last    case    cited    quotes    the 

263.  rule  laid  down  in  Blackstone,  and 

50—107   111.   182.  applies   that   rule  to   the   decision 

51 — The  following  cases  support  of  the  case,  viz.:  p.  292,  "the  word 

the  text   in   189    {ante)    and   also  'heirs'  is  necessary  to  create  a  fee, 

the    suhstance    of    cases    cited    in  so,    in    further    limitation    of    the 

{ante  190)    Butler   v.   Herests,   68  strictness  of  the  feudal   donation, 

111.  594;  Voris  v.  Sloan,  68  111.  588;  the    word    'body,'    or    some    other 

Blair  v.   Vanblarcum,   71   111.   290.  word  of  procreation,  are  necessary 


CONSTRUCTION  OF  WILLS— CONTINUED.  131 

191.  A  fee  simple  title  is  intended  if  a  lesser  estate  be  not 
limited  by  express  words.  In  the  first  instance  it  is  presumed 
that  the  grantor  or  donor  had  the  title  he  sought  to  convey, 
for  he  can  not  grant  or  give  that  which  he  has  not.  This 
fundamental  rule  is  always  applied  in  the  matter  of  construc- 
tion, to  ascertain  what  title  the  grantor  or  donor  had,  and 
what  in  contemplation  of  law  he  did  convey  or  devise,  aided 
by  a  view  of  the  entire  instrument  construed  and  the  intention 
manifest  therein  of  the  grantor  or  donor.  Thus  a  deed  from 
a  life  tenant  passes  only  a  life  estate  to  the  grantee,  and  the 
possession  of  the  latter  is,  in  contemplation  of  the  law,  the 
possession  of  the  remainderman,  the  same  as  was  the  posses- 
sion of  the  original  life  tenant.^^  Again,  where  an  estate  is 
devised  to  A  without  the  use  of  the  words  "heirs  and  assigns" 
A  will  take  a  fee  simple  estate  of  inheritance  unless  the  will  or 
instrument  of  conveyance  reduces  the  estate  to  an  estate  less  than 
a  fee  by  express  words,  or  by  construction  or  operation  of 
law.^2  So  where  a  testator  bequeathed  and  devised  imto 
his  only  daughter  ''and  to  the  heirs  of  her  body  and  to  their 
heirs  and  assigns,"  all  his  real  estate,  it  was  held  imder  this 
devise  the  daughter  took  a  life  estate  only,  with  the  remain- 
der over  to  the  heirs  of  her  body  in  fee  simple  absolute,  and 
that  the  limitation  to  her  heirs  was  valid  and  binding. ^^     A 

to  make  it  a  fee  tail,  and   ascer-  portions:"     Held,  that  Mary  took 

tain   to   what   heirs   in    particular  under  this  devise,  a  simple  life  es- 

the    fee   is    limited."     The   clause  tate,    with    a    remainder    over    to 

of  the  will  construed  and  applica-  the  heirs  of  her  body,  in  fee  sim- 

ble   was:     "I   will,   give,  bequeath  pie  absolute,  and  that  the  limita- 

and     devise     unto     my     daughter  tion   to   her   heirs   was   valid   and 

(naming   her),    and    to    the    heirs  binding. 

of   her    body,    and   to    their   heirs  52 — Turner    v.    Hause,    199    III. 

and  assigns,  all  my  real  estate,  of  464;     Giles     v.    Anslow,    128    111. 

whatever    description    and     wher«  187;    Mettler     v.     Miller,   129    111. 

ever  situated;  and  in  case  the  said  630. 

Mary  shall  die  without  issue,  then  53 — Wolfer  v.   Hemmer,  144  111. 

the  real  estate  hereby  willed,  be-  554;    Saeger  v.  Bode,  181  111.  514; 

queathed    and    devised    unto    her.  Smith    v.    Kimball,    153    111.    368; 

shall  go  to  and  descend  unto  my  Rissman  v.  Wierth,  220  111.  181. 

brothers  and  sisters,  and  to  their  54 — Blair  v.  Vanblarcum,  71  III. 

heirs   and    assigns,    in    equal    pro-  290;  Turner  v.  Hause,  199  111.  464; 


132 


THE  LAW  OF  ESTATES. 


power  of  sale  superadded  to  a  life  estate  does  not  enlarge  such 
estate  to  a  fee.^^  Where  the  testator  devised  to  his  children 
and  "to  them  only  and  the  heirs  of  their  bodies  share  and  share 
alike,"  it  was  held,  the  instrument  passed  a  life  estate  to  such 
children  with  remainder  in  fee  in  each  share  to  the  heirs  of  their 
respective  bodies.'^^  And  in  case  of  an  entire  failure  of  issue,  to 
the  heirs  at  law  of  the  devisor.^ ^ 

A  devise  of  an  estate  in  fee  simple  to  the  testator's  widow, 
followed  by  the  qualification  that  if  she  re-marries  she  shall 
have  only  one-third  of  the  estate,  passes  a  base  or  determina- 
ble fee,  and  not  merely  a  life  estate.  The  devisee  of  a  base 
or  determinable  fee  has  the  same  rights  as  if  the  devise  were 
in  fee  simple  absolute.^^ 

Where  use  of  the  words  in  a  will  "whatever  remains"  was 
held  not  to  enlarge  a  life  estate  into  a  fee.^®  And  where  a  will 
contained  the  words  "all  the  rest  and  residue  of  my  property, 
in  fee  simple,  I  give,  devise,  etc.,  to  my  wife  for  life,  after  her 


Lewis  V.  Pleasants,  143  111.  271; 
Frazer  v.  Supervisors,  74  111.  282; 
Cooper  V.  Cooper,  76  111.  57;  Lehn- 
dorf  V.  Cope,  122  111.  317;  Din- 
widdle V.  Self,  145  111.  290;  Kyner 
V.  Boll,  182   111.  171. 

55— Walker    v.    Pritchard,     121 
111.  221. 

56 — Peterson  v.  Jackson,  196  111. 
44. 

57— Turner  v.  Hause,  199  111. 
464. 

58— Becker  v.  Becker,  206  111. 
53.  Also  supporting  the  rule  and 
doctrine  of  that  case,  see  Wiggins 
Ferry  Co.  v.  Ohio  &  Mississippi 
Railway  Co.,  94  111.  83;  Lumbard 
V  Witbeck,  173  111.  396;  Chapman 
V.  Cheney,  191  111.  574;  Gannon 
V.  Peterson,  193  111.  372;  2  Am. 
and  Eng.  Ency.  of  Law,  2nd  ed., 
368,   369,   and  cases  cited. 

Isfote. — In  the  case  of  Becker  v. 
Becker,   supra,  the  following  rule 


is  quoted  from  Underbill  on 
Wills,  sec.  507,  and  applied  to  the 
case,  giving  construction  to  short 
will  of  testator.  "No  rule  of  law 
prevents  the  testator  from  giving 
her  a  fee  simple  in  lieu  of  dower, 
which  shall  be  defeasible  and 
shall  go  to  others  on  her  re-mar- 
riage. Thus,  where  the  testator 
in  general  terms  devises  land  in 
trust,  to  pay  the  income  to  the 
widow  for  an  indefinite  period, 
without  words  of  perpetuity  or 
inheritance  (and  a  fortiori,  when 
it  is  to  her  and  her  heirs),  with 
a  proviso  that  if  she  shall  re-mar- 
ry the  land  is  to  go  to  others. 
She  takes  a  fee — conditional  at 
common  law,  which  will  be  de- 
feated by  her  re-marriage;  but  if 
she  dies  without  having  re-mar- 
ried, the  fee  descends  to  her  heirs 
and  the  devise  over  is  defeated." 
59— Vannetta  v.  Carr,  223  111. 
160. 


CONSTRUCTION  OF  WILLS— CONTINUED.  133 

death  to  be  equally  divided,  etc.,"  held  to  pass  a  life  estate 
only  to  widow,  with  remainder  to  heirs.^*^ 

192.  The  rule  in  Shelly 's  case.  "In  any  instrument,  if  a 
freehold  be  limited  to  the  ancestor  for  life,  and  the  inheritance 
to  his  heirs,  either  mediately  or  immediately,  the  first  taker 
takes  the  whole  estate ;  if  it  be  limited  to  the  heirs  of  his  body, 
he  takes  a  fee  tail;  if  to  his  heirs  a  fee  simple."  This  rule  is 
closely  allied  with  the  subject  of  life  estates;  the  rule  is  in 
full  force  and  operation  in  the  state  of  Illinois.  A  very  elab- 
orate discussion  of  the  rule  in  connection  with  the  statute  of 
Illinois,  sections  6,  13,  chapter  30,  entitled  "Conveyances," 
can  be  found  in  the  opinion  rendered  in  Frazer  v.  Supervisors, 
etc.,^^  and  authorities  cited  in  sections  of  this  work  193  to  195. 

193.  In  Hageman  v.  Hageman,^'^  Chief  Justice  Shope, 
quoting  from  Kent,  says:  "The  result  of  the  famous 
controversy  tended  to  confirm,  by  the  weight  of  judicial  au- 
thority at  Westminster  Hall,  the  irresistible  pre-eminence  of 
the  rule,  so  that  even  the  testators'  manifest  intent  could  not 
control  the  legal  operation  of  the  word  'heirs,'  when  stand- 
ing for  the  ordinary  line  of  succession  as  a  word  of  limitation, 
and  render  it  a  word  of  purchase.  If  the  term  'heirs,'  as 
used  in  the  instrument,  comprehend  the  whole  class  of  heirs, 
and  they  become  entitled  on  the  death  of  the  ancestor,  to  the 
estate,  in  the  manner  and  to  the  same  extent,  and  with  the 
same  descendible  qualities,  as  if  the  grant  or  devise  had  been 
simply  to  A,  and  his  heirs,  then  the  word  'heirs'  is  a  word 
of  limitation,  and  the  intention  will  not  control  the  legal  effect 
of  the  word."  This  doctrine  has  received  repeated  recogni- 
tion by  this  and  other  courts  where  the  rule  in  Shelly 's  case 

60— Wallace  v.  Bozarth,  223  111.  254,  255,  and  cases  cited;    Vol.   5, 

339.  p.  116,  and  cases  cited.     Kurd's  R. 

66—75  111.  287.     Starr  &  Curtis'  S.   of  111.,  1905,  same  section  and 

Annotated     Statutes     of     Illinois,  chapter,  pp.  464,  466.     Rissman  v. 

with  Jones  &  Addington's  Supple-  Wierth,    220   111.,   pp.    181,   185    to 

ments  thereto.    Vol.  1,  pp.  917,  918,  187,   reviews   former  cases,   apply- 

925,  and   cases   cited;    Vol.   4,   pp.  ing  rule  in  Shelly's  case. 

67—129  111.   167. 


134  THE  LAW  OF  ESTATES. 

is  in  force.^8  The  same  Chief  Justice,  citing  from 
Preston  on  Estates,^^  "In  wills,  the  rule  applies  gen- 
erally, and  without  exception,  to  the  several  limitations,  as 
often  as  the  gift  to  the  heirs  is  without  any  expression  of 
qualification,  and  that  neither  the  express  declaration,  first, 
that  the  ancestor  shall  have  an  estate  for  his  life,  and  no 
longer;  nor,  secondly,  that  he  shall  have  only  an  estate  for 
life  in  the  premises,  and  that  after  his  decease  it  shall  go  to 
the  heirs  of  his  body,  and  in  default  of  such  heirs  vest  in  the 
person  next  in  remainder,  and  that  the  ancestor  shall  have  no 
power  to  defeat  the  intention  of  the  testator;  nor,  thirdly, 
that  the  ancestor  shall  be  tenant  for  life,  and  no  longer,  and 
that  it  shall  not  be  in  his  power  to  sell,  dispose  or  make  way 
with  any  part  of  the  premises,  will  change  the  word  'heirs' 
into  a  word  of  purchase."  Under  the  Illinois  decisions,  when 
the  statute  gives  a  fee  unless  the  contrary  appears,  the  rule  in 
Wild's  case,  which  in  certain  cases  enlarges,  by  construction,  a 
life  estate  into  an  estate  tail,  does  not  apply. '^'^ 

194.  In  Baker  v.  Scott, "^^  it  is  said:  The  rule  in 
Shelly 's  case  is  a  rule  of  property  in  this  state,  and 
its  application  to  the  particular  case  depends,  not  upon 
the  quality  of  the  estate  intended  to  be  given  to  the  ancestor, 
but  upon  the  estate  devised  to  the  heir.  When  the  devise  is 
to  heirs  generally,  the  rule  applies,  and  is  held  to  conclusively 
express  the  intention  of  the  testator ;  and,  will  necessarily  gov- 
ern and  control  in  determining  the  estate  devised,  notwith- 
standing the  expression  of  an  intention  on  the  part  of  the 
testator  that  the  ancestor  shall  take  a  less  estate  than  the  fee. 

195.  In  the  case  of  Carpenter  v.  Van  Orlinder,''-  Mr. 
Justice   Schofield  reviewing  the   authorities   at   length   in  this 

68— Baker  v.    Scott,   62   111.   88;  70— Davis    v.     Ripley,    194    111. 

Wicker  v.  Ray,  118  111.  472;   Ryan  399;    Boehm    v.    Baldwin,    221    111. 

V.  Allen.  120  111.  648;  Carpenter  v.  59. 

Van  Orlinder,  127  111.  42.  71—62    111.    88;    Ryan    v.    Allen, 

69— Preston   on   Estates,  Vol.   1,  118  111.  472. 

pp.  281-283.  72—127   111.   42. 


CONSTRUCTION  OF  WILLS— CONTINUED.  135 

and  other  states,  where  the  rule  in  Shelly 's  case  is  and  is  not 
applied,  quotes  with  much  approval  from  Mr.  Justice  Elliott, 
delivering  the  opinion  in  Allen  v.  Croft  J^  "It  has 
seemed  to  many  that  there  is  a  conflict  between  the  rule 
declaring  that  the  intention  of  the  testator  must  govern,  and 
the  rule  in  Shelley 's  case ;  but  the  appearance  of  conflict  fades 
away  when  it  is  brought  clearly  to  mind  that  when  the  word 
'heirs'  is  used  as  a  word  of  limitation,  it  is  treated  as  con- 
clusively expressing  the  intention  of  the  testator.  Where  it 
appears  that  the  word  was  so  used,  the  law  inexorably  fixes 
the  force  and  meaning  of  the  instrument.  If  once  it  is  granted 
that  the  word  was  used  in  its  strict  legal  sense,  nothing  can 
avert  the  operation  of  the  rule  in  Shelly 's  case;  so  that  the 
inquiry  is,  was  the  word  used  as  one  of  limitation?  The  only 
method  in  which  an  instrument  employing  the  word  'heirs' 
can  be  shown  not  to  be  within  the  rule,  is  by  showing  that 
the  word  was  not  employed  in  its  strict  legal  sense."  The 
doctrine  thus  elaborately  and  finely  stated  was  adopted  and 
sustained  in  three  cases,'^*  treating  the  devise  in  the  will  con- 
strued, as  if  the  language  used  in  the  will  was  a  devise  to  the 
daughter  of  the  testator  and  their  heirs,  without  qualification. 

73 — 109  Ind.  475.  three  daughters  took  an  estate  in 

74 — Ryan  v.  Allen,  118  111.  472;  fee  simple,  as  tenants  in  common. 

Wicker  v.  Ray,  120  111.  648;  Allen  subject  to  dower,  and  that  either 

V.  Carpenter,  127  III.  42;  note  Car-  heir  might  have  sold  her   estate, 

penter  v.  Van  Orlinder,  127  HI.  42.  without  regard  to  the  others,  and 

In  the  case  of  Carpenter  v.  Van  that  the  word   "heir,"   in  the  de- 

Orlinder,    stcpra    (72),    a    testator  vise,  under  this  will,  was  not  used 

devised    to    his    wife    and    three  as    the    equivalent    of    "child"    or 

daughters    "the    use    of    all"    his  "children"  or  "issue."   This  brings 

property  after  the  payment  of  his  the  case  within  the  rule  in  Shel- 

debts,  to  be  divided  between  them  ly's  case.     In  this  case  former  de- 

"as    the    same   would    be    by    law  cisions     are     reviewed,     including 

without  a  will,"  except  that  none  text   writers'   rules,   supported    by 

of  the  real  estate,  other  than  the  unquestioned     decisions.      Preston 

wood-land,  be  sold  or  disposed  of,  on  Estates,  Vol.  1,  pp.  281,  283;   4 

"but    be    kept    sacred    for    their  Kent's  Com.,  p.  233,  8th  ed. ;  Hay's 

heirs."    Held,  that  the  widow  took  Principles  for  Expounding  Dispo- 

a   dower  estate   for   life,   and   the  sitions  of  Real  Estate,  96   (7  Law 


136  THE  LAW  OF  ESTATES. 

196.  Vesting  of  estates — vested  and  contingent  remainders. 
A  vested  remainder  is  one  by  which  a  present  interest  passes 
to  a  party,  though  to  be  enjo3''ed  in  the  future,  and  by  which 
the  estate  is  invariably  fixed  to  remain  to  a  determinate  per- 
son after  the  particular  estate  has  been  spent.^^  A 
contingent  remainder  is  one  limited  to  take  effect  on 
an  event  or  condition  which  may  never  happen  or  be 
performed,  and  by  which  no  present  or  particular  interest 
passes  to  the  remainder-man,  so  that  the  particular  estate  may 
chance  to  be  determined  and  the  remainder  never  take 
effect.^^  The  question  of  vesting  or  remaining  contin- 
gent depends  upon  the  condition  of  the  intervening 
estate  determining,  and  the  estate  over  taking  effect;  it  is 
one  that  may  happen  some  time,  or  it  may  never  happen.  If 
the  former,  then  the  estate  in  remainder  will  always  be  re- 
garded as  vested.^2  The  law  does  not  determine  who 
shall  be  the  heirs  of  any  person,  until  his  death;  and  one  to  be 
an  heir  of  another,  must  survive  that  other.^^  j^  ^[n  ]^q  noted,  in 
relation  to  the  vesting  of  estates,  that  the  cases  cited  to  sustain 
the  text,  falls  within  one  or  the  other  of  the  following  classes. 
First:  Where  the  gift  takes  effect,  both  in  interest  and  possession, 
at  the  death  of  the  testator,  unless  such  gift  is  expressl}^  or 
by  necessary  implication,  deferred  to  a  future  period.  Second: 
Where  the  gift  is  so  limited  as  to  take  effect,  both  in  interest 
and  possession,  at  a  specified  time  subsequent  to  the  testator's 
death.     Third:    Where  it  is  limited  to  take  effect  in  interest 

Lib.    52) ;     Bender    v.    Fleurie,    2  see   Underbill    on   Wills,    pp.    192, 

Grant's  Cases,  345;  Butler  V.  Hues-  212;     "Underbill    and    Straban's" 

tis,  68  111.  594;    Hileman  v.  Bous-  Rules,  Articles  39  to  43,  inc. 

laugb,    13    Pa.    St.    344;    Allen    v.  81—2  Blackstone's  Com.  169. 

Croft,   109   Ind.   476;    Tbeobald  on  82— Hunt  v.   McCartney,   18   111. 

Wills,  336,  et  seq.;  Wicker  v.  Ray,  129;  Gill  v.  Manufacturing  Co.,  92 

118   111.    472;    Ryan   v.   Allen,   120  111.  254;  2  Redfield  on  Wills,  Sees. 

id.,  648;    Miller  v.  Ford,   109   Ind.  215,    217;    Jarman   on    Wills,    Sec. 

159;  Urich  Appeal,  86  Pa.  St.  386.  406. 

80—3    Blackstone's    Com.    169;  83— McCartney    v.    Osburn,    118 

111.  403. 


CONSTRUCTION  OF  WILLS— CONTINUED.  137 

at  the  testator's  death,  but  the  vesting  in  possession  is  de- 
ferred to  a  future  period.  Fourth:  Wliere  the  gift  is  limited 
in  such  a  manner  as  to  take  effect,  both  in  interest  and  pos- 
session, upon  some  contingency  or  event,  which  may  or  may 
not  happen  till  after  the  testator's  death.  All  these  rules  of 
limitations  are  applied  to  the  individual  as  well  as  to  the  sev- 
eral classes;  and  it  will  be  found  from  the  numerous  authori- 
ties they  are  thus  treated,  whenever  it  is  necessary  to  apply 
the  same  to  individuals  or  classes.  Thus  to  "Harry  as  heir 
of  his  deceased  mother^"  characterizing  the  person  by  name, 
makes  reference  to  the  same  person  as  Harry  Smith.  Or  if 
to  classes  "my  children  living"  or  grandchildren,  "the  heirs 
my  grandchildren  living  at  the  time  of  distribution."  A  con- 
tingent remainder  and  a  vested  remainder,  and  the  legal  appli- 
cation of  such  when  children  and  others  take  are  fully  dis- 
cussed in  the  following  cases  cited.^^ 

In  the  following  cases  it  is  held,  a  remainder  is  contingent 
when  the  person  to  take  cannot  be  ascertained  until  the  termi- 
nation of  the  particular  estate ;  a  remainder  contingent  upon 
death  or  re-marriage  of  a  certain  person,  is  not  excelerated 
by  conveyance  of  such  person's  interest  to  a  third  person.^^ 

84— Dee    v.    Dee,    212    111.    338;  rick  v.   Kirkpatrick,  197  111.   150; 

McCartney  v.  Osburn,  118  111.  403;  Railsback  v.  Lovejoy,  116  111. '442. 
Boyd    V.    Broadwell,    19    III.    App.         85 — Brownback    v.    Keister,    220 

178;   Banta  v.  Boyd,  118  111.  186;  111.  544.     In  Clark  v.  Shawen,  su- 

Kingman  v.  Harman,  131  111.  171;  pra    (84),    the    word    "heirs"    or 

Knight  V.  Pottgieser,  176  111.  374;  "heirs-at-law,"    when    used    in    a 

Harvard  College  v.  Balch,  171  III.  will,   was  held   to   apply  to  those 

280;   Seager  v.  Bode,  181  111.  518;  who  were  heirs  of  the  testator  at 

Burton    v.    Gagnon,    180    111.    352;  his  death;  and  such  is  the  rule  un- 

Lambe   v.    Drayton,   182   111.    117;  less  the  intention  of  the  testator 

Nevett  V.  Woodburn,  190  111.  288;  to  refer  to  those  who  shall  be  his 

Field  V.  People,  180  111.  381;  Lehn-  heirs   at   some   subsequent   period 

ard  V.  Specht,  180  111.  213;   Grim-  is  plainly  manifested  by  the  will, 

mer  v.  Friedery,  164  111.  248;   Mc-  And  so  in  that  case  it  is  held,  in 

Connell   v.   Stewart,   169   111.   379;  the  absence   of  a  contrary   inten- 

Clark  V.  Shawen,  190  111.  55;  John-  tion,  a  devise  of  a  life  estate,  with 

son  V.  Askey,  190  111.  63;  Boatman  remainder  over  to  a  class  of  per- 

V.  Boatman,  198  111.  419;   Kirkpat-  sons  not  named  but  described,  will 


138 


THE  LAW  OF  ESTATES. 


197.  Joint  tenancy — tenancy  in  common.  Section  5,  chap- 
ter 30,  entitled  "Conveyances,"  provides:  *'No  estate  in  joint 
tenancy,  in  any  lands,  tenements  or  hereditaments,  shall  be 
held  or  claimed  under  any  grant,  devise  or  conveyance,  what- 
soever, heretofore  or  hereafter  made,  other  than  to  executors 
and  trustees,  unless  the  premises  therein  mentioned  shall  ex- 
pressly be  thereby  declared  to  pass,  not  in  tenancy  in  common, 
but  joint  tenancy;  and  every  such  estate,  other  than  to  execu- 
tors and  trustees  (unless  otherwise  expressly  declared  as  afore- 
said), shall  be  deemed  to  be  in  tenancy  in  common."®^ 

In  the  well  considered  case  of  Cheney  v.  Teese,^"^ 
the  court  applying  the  statute  quoted,  in  construing  the  will 
before  it,  say:  "Unless  expressly  created,  a  devise  to  grand- 
children born  to  the  testator's  two  daughters,  who  were  to 
have  possession  of  the  estate  during  their  natural  lives,  cre- 


vest  the  remainder,  at  the  testa- 
tor's death,  in  the  persons  then 
comprising  the  class,  the  right  of 
enjoyment,  only,  being  postponed. 
The  case  turns  on  this  clause  of 
the  will  in  question.  The  testator 
left  his  entire  estate  to  his  wife 
for  life,  with  specific  bequests  out 
of  the  remainder  at  Ker  death,  and 
provides  "the  residue  of  my  estate, 
if  there  be  any  left,  be  divided, 
according  to  the  Statute  of  the 
State  of  Illinois,  amongst  all  my 
heirs,  except  those  above  named 
that  I  have  excluded."  Held,  the 
word  "heirs"  refers  to  those  an- 
swering the  description  at  the  tes- 
tator's death,  and  not  to  those  who 
would  be  his  heirs  at  the  death  of 
the  wife. 

In  the  case  of  Johnson  v.  Askey, 
supra  (84),  it  is  said,  a  technical 
construction  of  words  and 
phrases,  although  prima  facie  the 
one  which  should  prevail,  will  not 


be  carried  to  the  extent  of  defeat- 
ing the  obvious  general  intention 
of  the  testator,  particularly  where 
the  will  is  drawn  by  a  person  un- 
acquainted with  the  precise  tech- 
nical force  of  the  legal  formulas 
employed  by  him.  And  it  is  in 
that  case  held,  if  it  clearly  ap- 
pears, from  the  entire  will,  that 
it  was  the  intention  of  the  testator 
that  the  remainder  should  not  vest 
at  the  time  of  his  death,  but  at 
the  period  of  distribution,  such 
intention  will  be  carried  out  by 
the  courts.  See  also  Chapter  50 
of  this  work,  "Reversions  and  Re- 
mainders." 

86 — Starr  &  Curtis'  Annotated 
Statutes  of  Illinois,  with  Jones  & 
Addington's  Supplements  thereto. 
Vol.  1,  pp.  916,  917,  and  cases 
cited;  Vol.  4,  p.  254,  and  cases 
cited;  Vol.  5,  p.  116,  and  cases 
cited.  Kurd's  R.  S.  of  111.,  1905. 
same  section  and  chapter,  p.  464. 

87—108  111.   473. 


CONSTRUCTION  OF  WILLS— CONTINUED.  139 

ates  a  life  estate  in  the  two  daughters  until  the  death  of  both, 
as  tenants  in  common,  from  the  testator's  death,  without  any 
right  of  survivorship,  and  on  the  death  of  one  of  the  daugh- 
ters, the  estate  devised  to  her  does  not  terminate,  but  survives 
in  favor  of  her  grantees,  heirs  or  devisees,  whether  any  parti- 
tion has  been  made  or  not;  that  upon  the  death  of  one  of  the 
daughters  her  interest  did  not  pass  to  the  surviving  daughter, 
but  passed  to  the  heirs  of  the  deceased  daughter;  or  in  case 
of  a  will  to  her  devisees,  until  the  death  of  the  other  daughter, 
in  the  absence  of  express  words  in  the  will  creating  in  them 
a  joint  tenancy."  In  Mittel  v.  Karl,  and  Slater  v. 
Gruger,  it  is  held:^^  That  no  estate  in  joint  tenancy 
shall  be  held  or  claimed,  unless  the  premises  shall  expressly  be 
thereby  declared  to  pass,  not  in  tenancy  in  common,  but  in 
joint  tenancy.  But  since  the  married  woman's  act,  a  deed  or 
devise  to  husband  or  wife  make  them  tenants  in  common,  and 
not  tenants  by  the  entirety. ^^  In  the  case  of  Magnuson  v.  Mag- 
nuson,  the  court  citing  this  section  of  the  statute,  say:®^ 
"Under  the  statute  M  and  L  would  have  taken  by  the  will  as 
tenants  in  common  and  upon  M's  dying  prior  to  the  death  of 
the  testator  the  devise  to  him  would  lapse.  Being  tenants  in 
common,  the  devises  which  lapse  are  not  reabsorbed  into  the 
residue,  but  go  as  intestate  property.  In  case  of  the  failure  or 
revocation  of  the  devise  to  any  of  the  tenants  in  common  such 
shares  descend  to  the  heir-at-law  of  the  testator,  unless  the 
devise  be  to  the  objects  of  a  class.  "''^  It  is  said  in 
Vnderliill  on  Wills,  section  336:  "Where  a  lapse  takes 
place  in  the  gift  of  the  residue,  either  because  the 
sole  residuary  beneficiary  has  pre-deceased  the  testator 
or  because  one  of  the  several  residuary  beneficiaries  who 
take  as  tenants  in  common  have  died  before  him,  the  gift  which 
lapses  is  not  reabsorbed  into  the  residue,  but  goes  as  intestate 
property  either  to  the  heirs  or  the  next  of  kin  of  the  testator, 
according  to  the  nature  of  the  property.     This  rule  does  not 

88—133   111.   65;    165   111.   332.  90—197   111.   498. 

89— Cooper  v.  Cooper,  76  111.  57;  91 — 3  Jarman  on  Wills,  5th  Am. 

Mittel  V.  Karl.  133  111.  65.  ed.,  p.  17. 


140  THE  LAW  OF  ESTATES. 

apply  to  a  residue  which  is  given  in  language  which  creates  a 
joint  tenancy  among  the  residuary  legatees,  and  a  fortiori 
where  the  residuary  gift  is  to  several  who  take  as  members  of 
a  class,  to  be  ascertained  at  the  death  of  the  testator."  The 
court  citing  the  following  case  to  sustain  the  doctrine  an- 
nounced in  the  decision  :^2  ^  j)SLYt  of  the  residue  of  which  the 
disposition  fails  will  not  accrue  in  argumentation  of  the  remain- 
ing parts  as  a  residue  of  a  residue,  but,  instead  of  resuming  the 
nature  of  a  residue,  devolves  as  undisposed  of.'^^  Where  a  testator 
devises  to  three  of  his  children  property  as  tenants  in  common, 
and  subsequently  revokes  the  devise  to  one  and  makes  no  dis- 
position whatever  of  the  share  revoked,  such  share  will  go  to 
the  other  two,  but  it  will  descend  as  provided  in  the  statute  of 
descent.  "94 

Joint  tenancies  are  not  favored  in  Illinois;  under  section  5, 
chapter  30,  entitled  ''Conveyances,"^'^  no  estate  in  joint  tenancy 
passes  under  any  grant,  devise  or  conveyance,  other  than  to 
executors  and  trustees,  unless  the  premises  shall  be  expressly 
declared  to  pass,  not  in  tenancy  in  common,  but  in  joint  ten- 
ancy. If  a  grant  or  devise  imparts  the  quality  of  survivorship 
to  the  estate,  a  joint  tenancy  is  created,  even  though  it  is  not 
expressly  declared  that  the  estate  is  not  a  tenancy  in  common.^'^ 

198.  Conditions  and  conditional  Limitations  or  condition 
precedent  and  subsequent.  Where  a  devise  is  to  take  effect 
only  upon  the  performance  by  the  devisee  of  a  precedent  con- 
dition, the  condition  must  be  strictly  performed;  and  where 

92 — Skrymsher   v.   Northcote,    1  supra    (96),   a  devise  in  the  will 

Swanst.   570.  was  to  the  testator's  daughter  and 

93 — Powers  v.  Godwise,  172  his  wife,  "jointly,"  of  certain  de- 
Mass.  425 ;  2  Redfield  on  Wills,  2nd  scribed  property,  "to  them  and  to 
ed.,  p.  118,  and  cases  cited.  their  heirs   and  assigns   forever." 

94 — Minkler  v.   Simons,   172   111.  Held,    creates    a   tenancy   in    com- 

328.         .  mon,  and  not  a  joint  tenancy,  not- 

95 — Starr    &    Curtis'    Annotated  withstanding  the  use  of  the  word 

Statutes  of  Illinois,  "Vol.  1,  p.  916.  "jointly."    This  opinion  being  sus- 

96— Mustain  v.  Gardner,  203  111.  tained  by  Slater  v.  Gruger,  165  HI. 

284,  and  cases  cited  on  page  286.  329;    Davis  v.   Smith,  4  Harr.  68; 

Slater  v.  Gruger,  165  111.  332.  In  Billingsled  v.  Baldwin,  23  Md.  115. 
the   case   of   Mustain   v.    Gardner, 


CONSTRUCTION  OF  WILLS— CONTINUED.  141 

there  is  a  substantial  deviation  from  the  intent  of  the  testator 
as  expressed  in  his  or  her  will,  the  title  will  not  vest.  A  court 
of  chancery  will  never  vest  an  estate,  when,  by  reason  of  a  con- 
dition precedent,  it  will  not  vest  at  law.  And  if  the  precedent 
act  to  be  performed  consists  of  several  particulars,  every  par- 
ticular must  be  performed  before  the  estate  can  vest  or  take 
effect.  The  legatary  takes  nothing  till  the  condition  is  per- 
formed, and  consequently  has  no  right  to  demand  the  legacy, 
but  it  is  otherwise  where  the  condition  is  subsequent.®'  A  testa- 
tor devised  to  his  three  children  ''eighty  acres  of  land  each, 
which  I  may  hereafter  select  for  each  to  have  out  of  my  land." 
Under  construction  of  the  will  it  was  held,  that  the  selection  of 
the  eighty  acres  which  each  child  was  to  take  was  a  condition 
precedent,  on  which  the  remainder  was  to  vest,  which  condition 
not  being  performed  the  devise  of  the  remainder  was  inopera- 
tive.®^ A  provision  in  a  will,  that  "if  a  certain  legatee,  or  any 
one  claiming  under  him,  should  attempt  to  deprive  testator's 
widow  of  any  right  given  her  by  the  will,  their  rights  should  be 
forfeited,"  and  should  pass  to  certain  collateral  heirs  named, 
was  a  condition  subsequent^  and  not  a  condition  precedent  to  the 
vesting  of  the  estate.®® 

199.     In    Jennings    v.    Jennings,''-    it    is    said:     The    ques- 

97 — Nevins    v.    Gourley,    95    111.  precedent;  but  if  the  condition  be 

206.  subsequent,   the  condition   is   held 

98— Goff  V.  Pensenhafer,  190  111.  void,      and      the      gift      absolute. 

200.  Wright   v.   Mayer,    47   N.   Y.   App. 

99— Nevitt  v.  Woodburn,  190  111.  Div.  604.     Same  v.  Same,  62  N.  Y. 

283.     A  condition   in  restraint  of  Sup.  610;  Witherspoon  r.  Brokaw, 

marriage  annexed  to  a  gift  by  will  85    Mo.    App.    169;     Ramsdell    v. 

to  one  who  has   never  been  mar-  Boston,    172    111.    439;    Conrad    v. 

ried,  is  held  to  be  contrary  to  pub-  Long,  33  Mich.  78;   HawKe  v.  En- 

lic  policy,  and  void.     The  law  fa-  yart,     30     Neb.     149;     Thayer     v. 

vors  marriage,  and  therefore  does  Spear,  58  Vt.  327;   Born  v.  Harts- 

not  recognize  a  condition  annexed  man,  80  Cal.  452.     But  see  in  this 

to  a  gift  against  marrying  at  all,  connection    a    review   of   cases    in 

Maddox  v.  Maddox,  11  Gratt.  (Va.)  this   regard   in  matter  of  Haight, 

804;   80  Am.  Dec.  492-494;   38  Am.  51  N.  Y.  App.  Div.  310;    C4  N.  Y. 

Dec.  156-161;  1  L.  R.   A.  837,  838.  Sup.  1029;  also  see  Rood  on  Wills, 

A  gift  made  to  a  wife  on  condition  sees.  212,  611  to  614,  inclusive,  and 

she  shall  not  live  with  her  husband  cases   cited    indicating   conflict   in 

is    void,    where    the    condition    is  the  opinions. 

1—27  111.  518. 


142  THE  LAW  OP  ESTATES. 

tion  of  whctlier  a  condition  is  precedent  or  subsequent  in 
one  clause  of  the  will,  can  only  be  determined  by  ascertaining 
the  intention  of  the  testator,  as  manifested  in  the  will.  In  case 
of  doubt,  the  .rule  of  construction  requires  that  the  entire  in- 
strument, and  all  of  its  provisions,  shall  be  considered,  to  ascer- 
tain its  meaning.  That  part  of  the  will  in  question  construed, 
and  to  which  this  doctrine  was  applied  being  as  follows:  "A 
testator  gave  to  his  wife  all  his  estate,  to  be  disposed  of  in  any 
way  that  could  best  support  her  for  life,  but  if  his  sons,  John 
and  Thomas,  should  take  care  of  their  mother,  they  were  to 
have  certain  lands;  but  if  they  failed  to  support  their  mother, 
then  she  could  sell  the  land,  or  any  part  of  it,  to  support  her- 
self;  but  if  the  sons  complied  with  these  conditions,  they  were 
to  take  immediate  possession  of  the  land.  The  court  in  con- 
struing this  will  say:  The  testator  intended  to  charge  his 
entire  estate  with  the  support  of  his  widow ;  that  the  question 
of  support  was  a  condition  subsequent,  the  word  ''comply" 
being  used  in  the  sense  of  "assent,"  and  when  John  and 
Thomas  assented,  the  estate  passed  to  them,  burdened  with 
the  condition  of  support  of  the  mother ;  that  the  widow  of  John 
being  his  heir,  and  proffering  to  support  the  widow,  had  a 
right  to  inherit  and  possess  the  estate,  and  could  compel  the 
grantee  of  the  widow  to  re-convey  to  her.  In  the  case 
of  Illinois  Land  and  Loan  Co.  v.  Bonner, -  where  the  will 
failed  to  provide  for  the  event  that  did  happen  in  that  case, 
the  court  held:  The  testatrix  did  not  in  her  will  provide  for 
the  events  that  have  happened,  that  is^  of  her  sister  dying 
over  eighteen  years  of  age  and  her  brother  under  twenty-one 
years  of  age.  In  such  case,  the  court  will  not  provide  for  the 
unforeseen  events.  Where  the  testator,  in  the  disposition  of 
his  property,  overlooks  a  particular  event,  which,  had  it  oc- 
curred to  him,  he  would  in  all  probability  have  provided  against, 
the  court  will  not  rectify  the  omission  by  implying  or  asserting 
the  necessary  clause.  Conceiving  it  would  be  much  like  mak- 
ing a  will  for  the  testator,  rather  than  construing  that  already 
inade.3 

2—75  111.  315.  3— Cited  in  support  of  tlie  doc- 


CONSTRUCTION  OF  WILLS— CONTINUED.  143 

200.  Conversion.  The  doctrine  of  conversion  is  the  same, 
whether  the  conversion  be  wrought  by  will  or  contract.  A 
devise  of  real  estate,  which  by  the  provisions  of  a  willj  is  to 
be  converted  into  money,  and  that  money  distributed  among 
the  devisees,  must  be  treated  as  a  devise  of  money  and  not  of 
land.  •  Devisees  may  elect  to  take  the  land  itself,  instead  of 
the  money ;  but  the  character  of  the  devise  cannot  be  changed 
from  money  to  land  without  the  concurrence  of  all  the  dev- 
isees; when  there  is  no  election  to  take  the  real  estate,  it  is 
to  be  considered  as  converted  from  the  time  of  the  testator's 
death.^  Equity  has  power,  in  a  proper  case,  to  authorize  a  con- 
vei^ion  of  tinist  property  contrary  to  the  provisions  of  the  will 
creating  the  trust.^ 

201.  Election  allied  with  doctrine  of  conversion.  Election 
is  founded  upon  the  equitable  rule  or  principle:  "He  who 
accepts  a  benefit  under  a  will  must  adopt  the  whole  contents 
of  the  instrument,  conforming  to  all  its  provisions  and  renounc- 
ing every  right  inconsistent  with  it."^    Election  may  be  express 

trine  in  Illinois  Land  &  Loan  Co.  not  affect  the  validity  of  the  gift 

V.  Bonner,  supra,  2  Roper  on  Leg-  to   the   children   of   the   testator's 

acies,    1464;    same,    Sec.    619,   and  son,  and   the  absolute  interest  in 

marginal  notes,  with  rule  "A  con-  the  fund  vests  in  them  subject  to 

tingency  divesting  a  prior  vested  their   father's   life  estate  and  the 

interest    must    happen    literally."  provisions   of  the   will    respecting 

See  also  in  this  connection  Chap-  the  purpose  of  the  trust,  and  to 

ter  50  of  this  work,   "Reversions  the    rights   of   afterborn   brothers 

and    Remainders."      In    Nevitt   v.  or  sisters,  if  any,  to  be  let  in. 

Woodburn,  supra   (99),  where  the  4 — Baker  v.  Copenbarger,  15  III. 

testator   bequeathed   a   trust  fund  105;  Rankin  v.  Rankin,  36  111.  293; 

to  his  son  for  life  with  remainder  Ridgeway    v.    Underwood,    67    111. 

to  his  children,  and  at  their  death,  419;  Estate  of  Joel  Carington,  124 

if    childless,    to    go    to    collateral  111.  363;   Fisher  v.  Fairbanks,  188 

heirs   of  the  testator.     Held,   the  111.    191.      See    Equitable    conver- 

limitation   over   to   the   collateral  sions,    doctrine   of,    sections   310, 

heirs    is    void,     under     the    rule  311,   312,   379,   57,   70,   71,    75,   610 

against  perpetuities,  where,  at  the  of  this  work,  as  applied  to  cases 

testator's    death,    two    children    of  arising   under    rules   of   construc- 

his    sons    were    in    being    but    no  tion. 

children  had  been  born  to  them;  5 — Johnson  v.  Buck,  220  111.  226. 

but  it  is  said,  the  holding  of  such  6 — 2  Jarman  on  Wills,  page  443, 

limitation   over   to   be  void,   does  and  cases  cited;  Wooley  v.  Schra- 

der,  116  111.  37. 


144  THE  LAW  OP  ESTATES. 

or  implied  from  the  construction  or  interpretation  of  the  lan- 
guage used  in  the  will  or  instrument  before  the  court.  The 
doctrine  of  elections,  as  between  inconsistent  rights,  is  well 
established  in  this  state ;  its  most  frequent  application  has  been 
made  to  persons  taking  title  under  wills;  and,  as  applied  to 
such  instruments,  a  person  may  not,  at  the  same  time  take 
under  a  will  and  contrary  to  it.  Equity  has  established  its 
maxim  to  fit  the  case  exactly:  "He  who  would  accept  the 
bounty  of  another  must  do  so  upon  such  terms  and  conditions 
as  the  donor  may  choose  to  impose."  One  who  takes  under  a 
will  cannotj  therefore,  insist  that  the  provisions  in  his  favor 
shall  be  executed,  while  those  to  his  prejudice  shall  be  an- 
nulled.    He  must  accept  the  will  in  its  entirety  or  not  at  all.'' 

202.  Testator  presumed  to  dispose  of  his  whole  estate.  It 
is  a  rule  of  construction,  that  a  testator,  when  he  makes  and 
publishes  his  will,  intends  to  dispose  of  his  whole  estate,  unless 
the  presumption  is  rebutted  by  the  provisions  of  his  will,  or 
evidence  to  the  contrary.^  In  determining  the  intention  of  the 
testator,  the  presumption  of  law  is,  that  he  intended  by  his  will 
to  dispose  of  all  his  projDerty  and  to  leave  none  as  intestate.^ 

203.  In  Schofield  v.  Olcott,  this  rule  is  laid  down  from 
Redfield  on  Wills.^*'  "The  idea  of  any  one  deliberately  purposing 
to  die  testate  as  to  a  portion  of  his  estate,  and  intestate  as  to 

7 — Willbanks  v.  Willbanks,  18  based  on  suspicion  or  speculation. 
111.   17;    Brown  v.   Pitney,   39   111.     In  Van  Schaak  v.  Leonard,  supra 


468;  Gale  v.  Gale,  48  111.  471 
Wooley  V.  Schrader,  116  111.  29 
Ditch  V.  Sennott,  117  111.  362 
Gorham    v.    Dodge,    122    111.    528 


(7),  the  doctrine  is  laid  down  as 
completely  established,  that,  "elec- 
tion rests  upon  the  ground,  that 
one  who  asserts  a  claim  to  prop- 


Carper  V.  Growl,  149  111.  465;  Fry  erty  under  a  will  must  acknowl- 

V.    Morrison,    159    111.    244;     Van  edge   the   equitable    rights    of    all 

Schaak  v.   Leonard,   164   111.   602;  other     parties     under     the     same 

Buchanan    v.    McLennan,    192    111.  will." 

483.    In  the  case  of  Fisher  v.  Fair-  8 — Higgins    v.    Dwen,    100    111. 

banks,  supra    (4),   it  is   held   the  554. 

court  may  look  into  state  or  con-  9 — Boehm    v.    Baldwin,    221    IlL 

dition  of  property  in  ascertaining  59. 

testator's  intention.    And  it  is  said  10—120   111.   362;    2   Redfield   on 

testator's     intention      cannot     be  Wills,  235;  2  Jarman  on  Wills,  2d 

ed.,  469. 


CONSTRUCTION  OF  WILLS— CONTINUED.        145 

another  portion  is  so  unusual  in  the  history  of  testamentary  dis- 
positions as  to  justify  almost  any  construction  to  avoid  it." 

204.  In  Tautenham  v.  Dunz,^^  a  testator  devised  to 
a  person  named,  all  his  real  estate  by  its  proper  description, 
and  all  his  interest  in  a  certain  note  secured  by  a  deed  of 
trust.  Then  followed  these  words  in  the  will:  "Also  $3,000 
in  money,  to  be  paid  to  her  by  my  executor;  also,  all  the  loose 
property  in,  on  and  around  the  homestead,  consisting  of  one 
cow,  two  hogs,  and  a  lot  of  wood,  and  all  other  property  of 
every  kind."  The  record  shows  there  was  in  fact  in,  on  and 
around  the  homestead,  many  other  articles  of  property,  such 
as  kitchen  furniture,  ten  bushels  of  potatoes,  three  boxes  of 
export  beer,  four  and  three-quarter  barrels  of  cider,  thirty 
bushels  of  corn,  fifty  bushels  of  oats,  a  ton  of  hay,  a  lot  of 
ice  and  lumber,  and  implements  and  tools  of  various  sorts ;  and 
the  testator  owned  other  promissory  notes  for  money  he  had 
loaned.  The  court  in  giving  its  opinion  in  construing  this 
will,  cite  the  rule  laid  down  above,  saying:  "This  will  is  in- 
artistically  drawn.  It  is  manifest  that  the  scrivener  had  some 
knowledge  respecting  the  words  employed  in  making  testa- 
mentary devises  and  bequests;  but  it  is  apparent  from  an 
inspection  of  the  will  itself,  that  he  had  little  knowledge  of 
the  forms  necessary  in  making  testamentary  disposition  of 
estates.  If  it  was  the  intention  of  the  testator  to  bestow  all  his 
estate  upon  one  person,  that  intention  will  not  be  defeated  by 
a  partial  designation,  if  the  general  words,  giving  to  them 
their  natural  meaning  and  operation,  are  comprehensive 
enough  to  embrace  the  whole  estate."  After  reviewing  the 
cases  in  point  at  length,  the  court  holds,  the  sole  devisee  took 
all  the  property  and  estate  left  by  the  testator;  the  opinion 
concluding  in  the  words  quoted  from  1  Jarman  on  Wills,  761. 
"The  adjudged  cases  indicate  the  disposition  of  the  judges  of 
the  present  day  to  adhere  to  the  sound  rule  which  gives  to 
words  of  a  comprehensive  import  their  full  extent  of  operation, 
unless  some  very  distinct  ground  can  be  collected  from  the 
context  for  considering  them  as  used  in  a  special  and  restricted 

11—125  111.  524. 
10 


146  THE  LAW  OF  ESTATES. 

sense."  Especially  must  this  rule  be  observed  when  there  is 
no  other  bequest  capable  of  operating  on  the  general  residue 
of  the  testator's  personal  estate,  as  in  this  case. 

205.  Perpetuities.  The  definitions  given  by  Bouvier's  Law 
Dictionary  and  by  2  ^Vashhurn  on  Real  Property,  page  652, 
have  been  adopted  by  the  courts  of  Illinois.  The  first  authority 
says:  "A  perpetuity  is  defined  to  be  a  limitation  taking  the 
subject  thereof  out  of  commerce  for  a  longer  period  of  time 
than  a  life  or  lives  in  being,  and  twenty-one  years  beyond,  and 
in  case  of  a  posthumous  child  a  few  months  more,  allowing  for 
the  time  of  gestation."  Washburn  defines  a  perpetuity  to  be, 
"gyants  of  property  wherein  the  vesting  of  an  estate  or  inter- 
est is  unlawfully  postponed.  "^^  \i  jg  held,  where  an  estate  is 
vested,  although  liable  to  be  divested  by  a  subsequent  event,  the 
postponement  of  the  full  enjoyment  will  not  make  the  gift  ob- 
noxious to  the  rule  of  perpetuity. 

206.  In  Fussey  v.  White,'^^  it  is  very  manifest  the 
court,  when  possible,  will  avoid  declaring  a  perpetuity.  It 
being  said:  Such  a  construction  of  a  will  should  be  adopted, 
if  it  consistently  may  be,  as  will  uphold  it;  and  not  cause  it 
to  be  rendered  of  no  effect.  A  devise  will  not  be  construed  as 
attempting  to  create  a  perpetual  trust,  and  thus  render  it 
inoperative,  if  the  words  used  may  be  reasonably  construed 
otherwise.  Where  a  will  provided,  that  real  estate  devised  to  the 
husband  of  the  testatrix,  shall  after  the  husband's  death,  revert 
to  the  heirs  of  the  testatrix,  ' '  but  only  after  payment  by  them ' ' 
to  the  husband's  heirs  for  improvements  on  the  laud,  passes 
only  a  life  estate  to  the  husband,  and  not  a  fee,  and  such  clause 
in  the  will  did  not  create  a  perpetuity,  since  "heirs  of  the 
testatrix"  means  those  living  at  her  death,  and  payment  by 
them  for  improvements  on  land  thus  devised,  must  be  made 
in  the  lifetime  of  "the  heirs  of  the  testatrix."^'* 

12 — Waldo  V.  Cummings,  45  111.  writers   as   authorities,    supported 

421;  Lunt  v.  Lunt,  108  111.  313.  by  decisions  of  courts   frequently 

13—113  111.   637.  cited:     2  Redfield  on  Wills,  p.  225, 

14— Hill  V.  Gianelli,  221  111.  286.  sec.  18;  1  Jarman  on  Wills,  p.  737; 

See  the  following  cases  and  text  Illinois  Land  and  Loan  Co.  v.  Bon- 


CONSTRUCTION  OF  WILLS— CONTINUED.  147 

207.  In  Hale  v.  Hale,^^  the  court  construes  a  will,  a  clause 
of  which  was  interpreted  by  the  court  of  appeals  of  New 
York,  that  court  finding,  so  far  as  the  will  applied  to  real 
estate  in  that  state,  it  worked  an  unlawful  suppression  of  the 
powers  of  alienation ;  and  was,  for  that  reason  void.  It  was 
also  held  by  the  New  York  authority,  the  clause  in  question 
was  repugnant  to  the  provision  of  the  statute  of  that  state 
prohibiting  accumulations,  except  for  the  times  and  purposes 
in  the  statute  permitted.  The  Illinois  court  in  the  case  cited, 
taking  the  position  that  "no  such  objection  lies  to  that  pro- 
vision of  the  will  in  Illinois."  A  perpetuity  in  this  state  is 
defined  as  given  by  Bouvier,  holding  as  the  court  does,  that  the 
will  in  question  does  not  contravene  any  public  policy  existing 
in  the  State  of  Illinois. 

208.  In  the  case  of  St.  Peter's  Roman  Catholic  Church  v. 
Germain,^^  applying  the  rule  in  the  construction  of  the  statute 
of  Illinois  of  1869  and  1872,  limiting  churches  to  ten  acres  of 
land  in  quantity,  say:  "It  is  a  well  settled  rule  that  when 
a  corporation  is  forbidden  to  take  or  receive  lands,  such  pro- 
hibition goes  to  its  capacity  to  acquire,  and  a  deed  made 
to  it  under  such  circumstances  passes  no  title,  and  the 
conveyance  will  be  absolutely  void ;  and  the  same  rule  applies 
when  such  corporation  has  once  exhausted  its  capacity  in  ac- 
quiring lands  to  the  limit  that  is  given."  There  is,  however, 
one  exception  in  Illinois  and  many  other  states  to  this  rule 
against  perpetuities,  and  that  applies  when  gifts  are  made  for 
charitable  uses.^'' 

ner,  75  111.  315;  Bland  v.  Williams,  Annotated     Statutes    of    Illinois, 

3  M.  &  K.  411;  Smither  v.  Wallack,  with  Jones  &  Addington's  Supple- 

9  Ves.  233;   Peyton  v.  Berry,  2  P.  ments    thereto.    Vol.    1,    pp.    1026, 

Wms.  626;  Mankin    v.    Phillipson,  1027,   and   cases  cited;    Vol.   4,   p. 

3  M.  &  K.  257 ;  Gilman  v.  Redding-  301,  and  cases  cited.     Kurd's  R.  S. 

ton,  24  N.  Y.  1.  of    111.,    1905,    same    section    and 

15—125  111.  408;   ante,  205.  chapter,  p.  505. 

16—104  111.  440.    Starr  &  Curtis  17— Ingraham  v.  Ingraham,  169 

III.  432. 


148 


THE  LAW  OF  ESTATES. 


209.  Charitable  gifts  and  uses.  The  word  charity  in  its 
broadest  sense,  denotes  all  the  good  affections  which  men  ought 
to  bear  toward  each  other.  It  generally  embraces  all  that  is 
usually  understood  by  the  words  benevolence,  philanthropy 
and  good  will.^^ 

210.  The  legal  definition  given  by  Justice  Gray  in  the  case 
of  Jackson  v.  Phillips,  has  been  adopted  and  approved  by  the 
Illinois  courts,  and  is  quoted  in  the  case  of  Crerar  v.  Williams. ^^ 


18— Taylor  v.  Kelp,  2  111.  App. 
368. 

19—14  Allen,  56;  145  111.  625; 
Crerar  v.  Williams.  The  will  of 
John  Crerar  was  construed,  the 
49th  clause  authorized  the  execu- 
tors and  trustees  to  set  apart  so 
much  of  his  estate  or  invest  such 
a  sum  of  money  as  in  their  judg- 
ment might  seem  necessary  and 
proper,  and  to  pay  from  the  in- 
come thereof  all  costs,  charges 
and  expenses,  and  directed  that 
any  surplus  income  should  yearly 
be  paid  over  and  devoted  to  the 
purposes  set  forth  in  item  50,  and 
when  in  the  judgment  of  such 
executors  and  trustees  it  was 
proper,  the  principal  sum  provid- 
ed by  item  49  should  be  paid  over, 
etc.  By  item  50  a  devise  was 
made  of  all  the  residue  of  the  tes- 
tator's estate  for  a  free  public  li- 
brary and  its  endowment.  Held, 
that  section  49  of  the  will  was  to 
be  construed  together  with  the 
50th  clause,  and  read  as  though  it 
were  a  part  of  it,  or  as  though  it 
had  followed  that  clause  instead 
of  preceding  it.  Any  fund  set 
apart  under  the  49th  clause  is  to 
be  treated  as  a  part  of  the  estate 
bequeathed  by  the  50th  clause.  The 
two  clauses  of  the  will,  49  and  50, 


taken  together,  it  is  held,  do  not 
give  arbitrary  power  to  the  exec- 
utors and  trustees  to  fix  the 
amount  of  the  principdl  fund  to 
be  set  apart  under  the  49th  clause, 
or  to  say  when  it  shall  be  paid 
over  to  the  residuum.  The  exec- 
utors and  trustees  being  author- 
ized to  set  apart  a  proper  amount 
to  raise  an  income  to  pay  certain 
charges  and  expenses,  all  of  which 
must  be  reasonable.  That  clause 
gives  them  no  greater  power  tlian 
they  would  have  had  without  it. 
In  the  Crerar  case,  the  court  de- 
fines a  charity,  in  a  legal  sense,  as 
a  gift  to  be  applied,  consistently 
with  existing  laws,  for  the  benefit 
of  an  indefinite  number  of  per- 
sons, either  by  bringing  their 
hearts  under  the  influence  of  edu- 
cation or  religion,  by  relieving 
their  bodies  from  disease,  suffer- 
ing or  constraint,  by  assisting 
them  to  establish  themselves  for 
life,  or  by  erecting  or  maintaining 
public  buildings  or  works,  or  oth- 
erwise bearing  the  burdens  of 
government.  It  is  immaterial 
whether  the  purpose  is  called 
charitable  in  the  gift,  if  it  is  so 
described  as  to  show  that  it  is 
charitable  in  its  nature.  And  so 
it  was  held  a  gift,  "for  the  erec- 


CONSTRUCTION  OF  WILLS— CONTINUED.  149 

' '  A  charity  in  a  legal  sense,  may  be  more  f uUy  defined  as  a  gift, 
to  be  applied,  consistently  with  existing  laws,  for  the  benefit  of 
an  indefinite  number  of  persons,  either  by  bringing  their  hearts 
under  the  influence  of  education  or  religion,  by  relieving  their 
bodies  from  disease,  suffering  or  constraint,  by  assisting  them  to 
establish  themselves  for  life,  or  by  creating  or  maintaining  public 
buildings  or  works  or  otherwise  lessening  the  burdens  of  govern- 
ment. It  is  immaterial  whether  the  purpose  is  called  charitable 
in  the  gift  itself,  if  it  is  so  described  as  to  show  that  it  is  charita- 
ble in  its  nature."  Anj'-  tinist  coming  within  this  definition  for 
the  benefit  of  an  indefinite  class  of  persons  sufficiently  designated 
to  indicate  the  intention  of  the  donor,  and  constituting  some 
portion  or  class  of  the  public,  is  a  charitable  trust.  Among 
such  are  the  support  and  propagation  of  religion  and  the 
maintenance  of  religious  services.^o  To  pay  the  expenses  and 
salary  of  rectors  ;2i  or  the  preaching  of  an  annual  sermon  in 
memory  of  the  testator.22  In  Hoeffej'  v.  Clogan,  it  is  said:^^ 
"The  doctrine  of  superstitious  uses  arising  from  the  statute  of 
Edward  VI.,  chapter  14,  under  which  devises  for  procuring 
masses  were  held  to  be  void,  is  of  no  force  in  this  state  and  has 
never  obtained  in  the  United  States.  In  this  country  there  is  ab- 
solute religious  equality,  and  no  discrimination,  in  law,  is  made 
between  different  religious  creeds  or  forms  of  worship.  It 
cannot  be  denied  that  bequests  for  the  general  advancement  of 
the  Roman  Catholic  religion,  the  support  of  its  forms  of  wor- 
ship or  the  benefit  of  its  clergy,  are  charitable,  equally  with 
those  for  the  support  or  propagation  of  any  other  form  of  religi- 
ous belief  or  worship.  The  nature  of  the  mass,  like  preaching, 
prayer,  the  communion,  and  other  forms  of  worship,  is  well 
understood.  It  is  intended  as  a  repetition  of  the  sacrifice  on 
the  cross,  Christ  offering  Himself  again  through  the  hands  of 

tion,    creation,    maintenance    and  21 — Alden   v.   St.    Peter's   R.   C. 

endowment"    of   a   free   public   li-  Parish,  J5S  111.  631. 

brary,  in  the  city  of  Chicago,  falls  22 — Durror  v.   Motteux,    1   Ves. 

•within  the  definition  of  a  charity.  Sr.  320. 

20— Andrews  v.  Andrews,  110  111.  23—171  111.  462. 
223. 


150  THE  LAW  OF  ESTATES. 

the  priest  and  asking  pardon  for  sinners  as  He  did  on  the 
cross;  such  is  the  chief  and  central  act  of  worship  in  the 
Roman  Catholic  church.  The  Roman  Catholic  church  believes 
that  Christians  who  leave  this  world  without  having  sufficiently 
expiated  their  sins,  are  obliged  to  suffer  a  temporary  penalty 
in  the  other ;  and  among  the  special  purposes  for  which  masses 
may  be  said  is  the  remission  of  this  penalty.  A  bequest  for 
such  special  purpose  merely  adds  a  particular  remembrance  to 
the  mass,  and  does  not,  in  our  opinion,  change  the  character 
of  the  religious  service  and  render  it  a  mere  private  benefit-^* 
It  was  a  fixed  maxim  in  Roman  jurisprudence  that  legacies  to 
pious  uses,  which  included  all  legacies  destined  for  works  of 
piety  or  charity,  whether  they  related  to  spiritual  or  temporal 
concerns,  were  entitled  to  particular  favor  and  deemed  to  be 
privileged  testaments.  The  rule  has  always  been  adopted  in  the 
State  of  Illinois,  "that  conveyances  and  devises  to  charitable 
uses  are  not  subject  to  operation  of  the  rule  against  per- 
petuities, which  forbids  an  estate  in  land  to  be  tied  up  for  more 
than  a  life  or  lives  in  being  and  twenty-one  years.  "^^ 

24 — See  same  doctrine  laid  down  even    though    the    annexed    trust 

in  Hoeffer  v.  Clogan,  and  rule  ap-  may  be  void,  as  the  latter  will  be 

plied  therein;  Schouler,  Petitioner,  regarded    merely    as    a    mode    of 

134  Mass.   426;    Rhymer's  Appeal,  managing   the   trust.     The   inten- 

93   Pa.   St.   142;    Seibert's  Appeal,  tion    of   the   testator   in   favor   of 

18  W.  N.  Cass,  276.  charity  will  be  allowed  to  prevail 

25 — Andrews  v.  Andrews,  110  even  though  his  particular  inten- 
111.  223;  Hale  v.  Hale,  125  111.  399;  tion  as  to  the  manner  of  manag- 
Gray's  Rules  Against  Perpetuities,  ing  the  gift  fails.  The  immediate 
sec.  589;  Ingraham  v.  Ingraham,  and  unconditional  devotion  of  a 
169  111.  432.  In  this  case,  it  is  fund  to  charity,  and  not  the  time 
held:  Provisions  of  a  will  v/hich  or  manner  of  its  application  or  ad- 
contain  charitable  bequests  will  ministration,  is  the  test  of  the 
receive  a  more  liberal  construction  validity  of  a  bequest  for  charity, 
than  is  allowable  in  case  of  gifts  And  so,  in  determining  whether  a 
to  individuals.  And  where  a  vest-  gift  is  immediate  or  to  be  post- 
ed estate  is  distinctly  given  to  a  poned  until  the  time  of  payment 
charity,  to  which  is  annexed  a  or  application,  the  language  of  the 
trust  for  accumulation  which  vio-  testator  used  throughout  the  en- 
lates  the  rule  against  perpetuities,  tire  will,  must  be  liberally  con- 
the    vested    estate    will    be    valid  strued    in    favor    of    vesting    the 


CONSTRUCTION  OF  WILLS— CONTINUED.  151 

211.  Statute  of  charitable  uses — 43  Elizabeth,  chapter  4, 
is  the  law  of  Illinois.  The  principles  of  pious  legacies  under 
the  high  authority  of  the  civil  law,  were  injected  into  the 
common  law  of  England  and  subsequently  the  statute  43  Eliza- 
beth, chapter  4,  known  as  the  Statute  of  Charitable  Uses,  was 
enacted  and  has  been  and  is  now  the  law  of  England.  The 
state  of  Illinois  adopted  in  an  early  day,  the  common  law  of 
England,  and  thereby  the  Statute  of  Charitable  Uses  became 
and  is  the  law  of  this  state  to-day,  except  where  changed  or 
modified  by  enactments  of  the  state  legislature  in  conflict  with 
the  original  statute.^^  Under  this  Statute  of  Charitable  Uses,  the 
courts  are  very  liberal  in  the  construction  of  wills  and  other  doc- 
uments granting  gifts  or  legacies  for  charitable  uses  and  pur- 
poses. The  courts  carry  this  doctrine  to  the  extent  in  Illinois 
at  least,  that  they  will  not  permit  to  be  lost  such  gifts  or 
legacies,  for  either  the  uncertainty  or  failure  of  the  person  or 
objects  for  which  such  gifts  or  legacies  were  destined.  In  the 
case  of  Andrews  v.  Andrews,  it  is  said:^^  "The  princi- 
ple is  well  established,  that  if  a  bequest  be  for  charity, 
it  matters  not  how  uncertain  the  persons  or  the  objects  may 
be;  or  whether  the  persons  who  are  to  take  are  in  esse  or  not; 
or  whether  the  legatee  be  a  corporation  capable,  by  laAv,  of 
taking,  or  not ;  for  in  all  of  these  and  like  cases,  the  court  will 

charitable  interest.     So  where  two  of  such  appropriations  "to  revert" 

constructions  of  a  bequest  to  char-  to  the  original  fund.     Held  these 

ity  are  possible,  one  of  which  will  words  create  an  implied  trust,  to 

render  the  bequest  void  as  an  ille-  provide  for  the  support  of  desig- 

gal  perpetuity  and  the  other  will  nated  relatives  of  the  testator,  and 

render  it  valid  and  operative,  the  not  a  mere  discretionary  power  in 

latter    will    be    adopted.      In    this  the  trustees.     See   also   2    Story's 

case  one  of  the  clauses  to  the  will  Eq.  Jur.,  sees.  1137,  1139. 
was   a  bequest  to   charity   in  the         26 — Starr    &    Curtis    Annotated 

form  of  an  accumulating  trust,  au-  Statutes  of  Illinois,  2d  ed..  Vol.  3, 

thorizing  the  trustees  to  appropri-  p.  4046,  sets  forth  the  statute,  43 

ate  part  of  the  fund  to  the  sup-  Elizabeth,  known  as  the  Statutes 

port   of   certain    of   the   testator's  of    Charitable    Uses.      See    Scates' 

kindred  "in  the  event"  they  should  Com.,  720;  Ingraham  v.  Ingraham, 

come  to  want,  the  unused  portions  169  111.  432. 

27—110  III.  223. 


152  THE  LAW  OF  ESTATES. 

sustain  the  legacy,  and  give  it  effect  according  to  its  own  prin- 
ciples; and  where  a  literal  execution  becomes  inexpedient  or 
impracticable,  the  court  will  execute  it,  as  nearly  as  it  can,  ac- 
cording to  the  original  purpose,  or  cy  pres.^^ 

212.  The  chancellor  will  direct  a  scheme  for  the  charity. 

Another  important  rule  applying  to  this  class  of  cases  being, 
that  where  money  is  given  to  a  charity  generally  and  indef- 
initely, without  trustee  or  object  selected,  under  the  English 
law,  the  King,  as  trustee,  or  parens  patriae  will  direct  a 
scheme ;  and  where  trustees  are  appointed  the  Chancellor  will 
direct  a  scheme  for  the  charity,  he  having  jurisdiction  over  the 
trust.29  And  this  when  neither  the  trustee  or  objects  are  selected. 
In  the  leading  case  in  Illinois,  often  cited  and  sustained  in  later 
cases,  Heuser  v.  Harris,  it  is  said:^**  "Surely  the  powers  of  a 
court  of  chancery  should  extend  so  far  as  to  supply  a  trustee  to 
manage  a  testamentary  bequest  for  charity,  and  if  it  be  admitted 
one  could  not  be  elected  under  the  will,  a  court  of  chancery,  to 
carry  out  the  intention  of  the  testator,  would  by  a  liberal  in- 
tendment, appoint  one.  Every  reasonable  act  will  be  done,  and 
the  most  liberal  construction  of  the  will  had,  by  a  court  of 
chancery,  to  aid  the  beneficiaries,  when  the  intention  is  plain 
and  undeniable.31 

213.  The  doctrine  of  cy-pres.  This  doctrine  is  always  ap- 
plied by  courts  of  chancery ;  it  is  a  child  of  chancery  born  ages 
ago;  the  doctrine  is  used  or  applied  for  the  express  purpose 

28 — Heuser    v.     Harris,    42     111.  Hlinois    the    same    principles    and 

425;    Ingraham  v.   Ingraham,   169  rules   have   been   applied,   as   laid 

111.  432;  Hoeffer  v.  Clogan,  171  111.  down    in    the    Heuser    case,    and 

462.  Hadley      v.      Hopkins      Academy, 

29 — Boyle  on  Charities,  238,  239.  supra.    Holden  v.  Cook  County,  87 

30—42  111.  425.  111.    275;    Mills   v.    Newberry,    112 

31— The     following     authorities  111.  123;    Oilman  v.  Stone,  120  U. 

affirm   the   doctrine  laid   down   in  S.   586;    Hunt  v.   Fowler,   121   111. 

the  early  case  of    Heuser  v.  Har-  269;     Morgan    v.     Grand     Prairie 

ris,   supra    (28);    Hadley  v.    Hop-  Seminary,  171  111.  453;    Hoeffer  v. 

kins  Academy,  14  Pick.  240;  Vidal  Clogan,  171  111.  467;    Ingraham  v. 

v.  Girard,  2  Howe.  U.  S.  127.     In  Ingraham,   169   111.   432;    Garrison 

V,  Little,  75  111.  App.  411. 


CONSTRUCTION  OF  WILLS— CONTINUED.  153 

of  giving  effect  to  charitable  legacies.  It  is  usually  applied 
where  charitable  gifts  are  made  by  will,  and  where  the  par- 
ticular intention  of  the  testator  is  impractical  or  illegal;  when 
such  appears  from  the  interpretation  of  the  words  of  the  will, 
the  equitable  jurisdiction  will  be  applied  in  this  doctrine,  for 
such  courts  consider  charity  as  the  substance  of  the  doctrine ; 
and,  when  the  mode  pointed  out  by  the  will  fails,  the  court  will 
provide  another  mode  by  which  the  charity  may  take  effect.^^ 
214.  In  Heuser  v.  Harris,  it  is  said:'"^^  "Another  prin- 
ciple well  established  iSj  that,  if  the  bequest  be  for  charity,  it 
matters  not  how  uncertain  the  person  or  the  object  may  be,  or 
whether  the  persons  who  are  to  take  are  m  esse  or  not,  or 
whether  the  legatee  be  a  corporation  capable  by  law  of  taking 
or  not ;  or  whether  the  bequest  can  be  carried  into  exact  execu- 
tion or  not;  for,  in  all  these  and  the  like  cases,  the  courts  will 
sustain  the  legacy  and  give  it  effect  according  to  its  own  prin- 
ciples, and  where  a  literal  execution  becomes  inexpedient  or 
impracticable  the  court  will  execute  it  as  nearly  as  it  can  ac- 
cording to  the  original  purpose  of  cy  pres.  Charities  are 
administered  by  the  courts  on  cy  pres  principles  for  the  very 
purpose  of  sustaining  and  carrying  into  effect  the  intention ; 
but  they  cannot  change  the  object  or  place  because  the  fund 
could  be  more  judiciously  and  efficiently  applied  in  another 
place,  or  to  a  different  object.  The  doctrine  of  cy  pres  has 
no  place  in  legacies  to  individuals,  but^  in  a  charity  like  this, 
there  is  reason  and  good  sense  in  presuming,  as  held  in  this 
case,  had  the  testator  known  the  election  of  a  trustee,  in  the 
mode  he  proposed,  his  executing  bond,  and  to  serve  as  such 
gratuitously,  he  would  have  adopted  another  mode,  and  the 
court  must  act  as  he  himself  would  have  done,  and  this  is  the 
foundation  of  the  doctrine  of  cy  pres.     An  approximation  to 

32— Vidal  v.  Girard,  43  U.  S.  (2  of  Sailor's  Harbor,  28  U.  S.  (3 
Howe)  127;  Ould  v.  Washington  Pet.)  99;  Oilman  v.  Hamilton,  16 
Hospital,  95  U.  S.  (5  Otto)  303;  111.  225;  Heuser  v.  Harris,  42  111. 
Jones  V.  Habbersham,  107  U.  S.  425;  2  Story's  Eq.  Jur.,  sections 
(17  Otto)   174;    Inglis  v.  Trustees     1167,  1169. 

33—42  111.  425. 


154  THE  LAW  OF  ESTATES. 

the  intention  of  the  testator,  as  near  as  possible,  is  all  that  is 
meant  by  this  doctrine.  And  when  the  object  is  so  plainly  mani- 
fested, great  latitude  will  be  allowed  in  the  selection  of  a  trus- 
tee, or  in  a  mode  by  which  the  intention  can  be  carried  into  full 
effect.  The  counsel  for  appellants  insist,  that  the  bequest  to 
"the  poor  of  Madison  County"  is  so  general  and  vague,  that 
it  cannot  be  carried  into  effect.  We  think  the  principle  above 
stated,  and  the  cases  referred  to,  fully  settle  this  branch  of 
the  Case.  That  the  term  "the  poor  of  Madison  County"  is 
vague,  having  no  definite  meaning,  is  so,  in  the  sense  in  which 
appellant's  counsel  presents  it.  The  poor  of  a  county  are,  in 
legal  contemplation;  understood  to  be  those  who  are  dependent 
upon  public  charity;  in  other  words,  they  are  the  paupers  who 
are  maintained  by  taxes  levied  on  the  people,  or  by  the  income 
from  the  public  property.  They  are  under  the  care  and  super- 
vision, in  some  counties,  of  the  county  courts,  and  in  other  coun- 
ties, of  the  boards  of  supervisors  of  the  county,  either  of  which 
is  capable  of  taking  a  bequest  of  this  kind  as  a  trustee. 

215.  Power  of  sale  under  will.  This  power  may  be  given  by 
express  words,  or  by  implication.  In  the  early  case  of  Rankin 
V.  Rankin,  the  court  construing  the  will  in  question, 
fiaid:^*     "No  question  can  be,  nor  indeed  is  made,  as  to  the 

34 — 36  111.  296;   Rankin  v.  Ran-  which    that    instrument    has    im- 

kin,  supra,  one  of  the  early  cases  pressed  upon  it.    Where,  therefore, 

in   Illinois,   held:      That  where  a  land   is   directed   to   be  sold,    and 

testator   directs    his   estate   to    be  its    proceeds    divided    among    cer- 

disposed   of  for   certain  purposes,  tain   persons   named   in   the   will, 

without    declaring    by    whom    the  this   is  to  be  considered  as  a  be- 

sale  shall  be  made,  if,  in  the  ab-  quest  of  money.    And  in  such  case, 

sence   of   such   a   declaration,   the  where    the    testator    directed    his 

proceeds  be  distributable  by  the  ex-  farm    to    be    disposed    of    to    the 

ecutor,    he    will    have    power    by  very  best  advantage,   either   in   a 

implication.    What    ought    to    be  body  or  divided  into  lots,  and  the 

done   is   considered   in    equity    as  proceeds  thereof  to  be  divided  into 

done.     Every     person,     therefore,  five  equal  parts,  and  given  to  cer- 

claiming  property  under  an  instru-  tain  specified  persons,  but  the  tes- 

ment     directing     its     conversion,  tator  did  not  declare  or  direct  by 

must    take    it    in    the    character  whom  the  sale  should  be  made,  it 


CONSTRUCTION  OF  WILLS— CONTINUED.        155 

intention  of  the  testator  that  the  laud  should  be  sold.  But  it 
is  urged  that  the  executors  had  no  power  to  make  the  sale. 
The  court  citing  from  Williams  on  Executors,  p.  413:  "It 
sometimes  happens  that  a  testator  directs  his  estate  to  be  dis- 
I^osed  of  for  certain  purposes,  without  declaring  by  whom  the 
sale  should  be  made.  In  the  absence  of  such  a  declaration,  if 
the  proceeds  be  distributable  by  the  executors,  he  shall  have 
the  power  by  implication.  Thus  a  power  in  a  will  to  sell 
or  mortgage,  without  naming  a  donee,  will,  unless  a  contrary 
intention  appear,  vest  in  the  executor,  if  the  fund  is  to  be 
distributable  by  him,  either  for  the  payment  of  debts  or  leg- 
acies." The  principle  is  well  settled,  and  is  not  controverted 
by  the  counsel  for  the  defendant  in  error,  but  it  is  contended 
that  the  proceeds  of  the  sale  were  not  distributable  by  the 
executors.  Again  citing  from  Williams  on  Executors^  page 
114:  "It  is  an  established  doctrine  in  courts  of  equity,  that 
the  thing  shall  be  considered  as  actually  done,  which  ought 
to  have  been  done,  and  it  is  with  reference  to  this  principle  that 
land  is  under  some  circumstances  regarded  as  money,  and 
money  as  land."  Nothing  is  better  established  than  the  prin- 
ciple, that  money  directed  to  be  employed  in  the  purchase  of 
land,  and  land  directed  to  be  sold  and  turned  into  money,  are 
to  be  considered  as  that  species  of  property  into  which  they  are 
directed  to  be  converted.^ ^  It  follows,  therefore,  that  every  per- 
son, claiming  property  under  an  instrument  directing  its  con- 
version must  take  it  in  the  character  which  that  instrument  has 
impressed  upon  it ;  and  its  subsequent  devolution  and  disposition 
will  be  governed  by  the  rules  applicable  to  that  species  of  prop- 
was  held:  That  the  bequest  was  in  the  later  cases  is  supported  by 
of  money,  and  will  be  so  consid-  Toller  on  Executors,  p.  301;  4  Bac. 
ered,  as  a  fund  distributable  by  Abr.,  337,  425;  2  Blackstone's  Com. 
the  executors  to  certain  legatees;  512;  Fletcher  v.  Ashburner,  1  Bro. 
therefore  the  executors  had  power  C.  C.  497;  Baker  v.  Copenbarger, 
to  make  the  sale  without  invoking  15  111.  103;  January  v.  Smith,  29 
the  aid  of  a  court  of  equity.    This     111.  116. 

decision  which  has  been  followed         35 — Fletcher     v.     Ashburner,     1 

Bro.  C.  C.  497. 


156  THE  LAW  OF  ESTATES. 

erty.  The  land  was  directed  to  be  sold,  and  its  proceeds  divided 
among  certain  persons  named  in  the  will.  It  was  then  to  be  con- 
sidered as  a  bequest  of  money.^^  The  power  of  sale  of  real  estate 
exists  by  or  under  the  will  only,  it  is  restricted  under  the  well 
settled  rules  for  interpreting  such  instruments,  to  the  intention 
and  language  of  the  testator.  And  where  there  is  a  doubt  in  the 
mind  of  an  executor  or  trustee,  it  is  the  duty  of  such  to  seek 
the  aid  and  advice  of  a  court  of  equity  before  exercising  the 
power  of  sale  that  is  questionable.^'^  An  estate  was  devised  to  be 
managed  by  devisees  indefinitely,  unless  they  desired  to  surren- 
der it  to  the  executors  for  sale,  which  they  could  do  by  written 
agreement  signed  by  at  least  two  of  them.  The  court  in  con- 
struing the  will  in  question,  held,  that  a  disagreement  among 
devisees  as  to  such  management,  and  their  not  conducting  the 
estate  as  testator  desired,  did  not  operate  to  subject  the  property 
to  sale,  since  that  could  only  be  done  in  the  manner  prescribed 
in  the  will.^s  And  so  it  is  held,  a  clear  power  of  sale  conferred 
by  will  can  be  restricted  only  by  subsequent  explicit  words. 
Courts  will  not  interfere  with  discretionary  powers  of  trustees 
except  for  fraud.  Beneficiaries  cannot  disaffirm  a  sale  by  trus- 
tees and  retain  the  purchase  money;  and  the  purchaser  is  not 
bound  to  look  to  the  application  of  the  money  Avhere  the  trustees ' 
power  of  sale  is  discretionary.^'' 

36— Rankin    v.    Rankin,    36    111.  39— Dickson  v.  N.  Y.  B.  Co.,  211 

296.  111.  468,  et  seq.    In  Krutz  v.  Gray- 

37 — Kenny    v.    Knoble,    51    111.  bill,  supra   (37),  under  a  will  au- 

121;  White  v.  Glover,  59  111.  462;  thorizing  the  executors  to  sell  all 

Hughes  V.  Washington,  72  111.  84;,  the  real  estate  for  the  purpose  of 

Werner  v.  Thornton,  98   111.   156;  settling  the  testator's  affairs,  and 

Stoff  V.  McGinn,  178  111.  46;   Gam-  to  turn  the  proceeds  over  to  the 

mon  V.  Gammon,  153  111.  44;  Hale  testator's   wife   "after   paying   my 

V.  Hale,  125  111.  399;   Mulligan  v.  debts;   and  for  this  purpose  I  au- 

Lamb,    178    111.    130;     Bauerle    v.  thorize  my  said  executors    .     .     . 

Long,  187  111.  475;  Poulter  v.  Poul-  to  execute  all  necessary  deeds  to 

ter,  193  111.  641;  Krutz  v.  Graybill,  perfect  such  sales,  and    ...    to 

192  111.  445.  make  all  such  sales  on  such  terms 

38 — McFarland     v.     McFarland,  and     conditions     as     they    .     .     . 

177  111.  208;   Illinois  Land  &  Loan  may  deem  proper,     .     .     .     except 

Co.  v.  Bonner,  75  111.  315.  the   farm   on   which  Hugh   Smith 


CONSTRUCTION  OF  WILLS— CONTINUED. 


157 


216.  Sale  of  an  heir 's  expectancy.  Such  sale  will  be  upheld 
where  fair  and  proper;  but  it  is  considered  a  contract  to  con- 
vey the  interest  when  it  comes  in  esse.  The  heir  inherits  from 
the  first  ancestor,  and  there  is  no  privity  between  them  and 
their  immediate  ancestor.  If  after  assignment  the  heir  dies 
before  the  ancestor,  as  there  was  no  interest  in  the  heir's  life- 
time, upon  which  the  contract  could  operate,  the  heirs  of  the 
heir  are  not  bound  by  the  contract.'*'*    An  estate  in  expectancy 


now  lives,  and  as  to  such  farm  I 
desire  my  executors  not  to  sell  the 
same  until  they  can  get  $30  per 
acre."  The  executors,  it  was  held, 
were  not  precluded  from  selling 
the  farm  so  excepted  until  the 
price  of  $30  per  acre  can  be  had, 
but  they  may  sell  at  the  best  price 
obtainable  after  waiting  until  such 
sale  becomes  necessary  in  order  to 
pay  the  testator's  debts.  This  case 
being  decided  upon  the  doctrine 
laid  down  in  the  case  of  Updike 
V.  Thompkins,  100  111.  406,  where  it 
is  said:  "Particular  expressions 
will  not  control  where  the  whole 
tenor  or  purpose  of  the  instrument 
forbids  a  literal  interpretation  of 
the  specific  words.  Wills,  like 
deeds,  contracts  and  enactments, 
must  be  construed  according  to  the 
intent  of  the  maker,  and  that  must 
be  ascertained  from  an  examina- 
tion of  the  instrument  and  all  of 
its  provisions."  And  in  the  case 
of  Poulter  V.  Poulter,  supra  (37), 
it  was  held  a  power  of  sale  will 
be  implied  where  it  is  necessary  to 
enable  the  executor  to  carry  out 
the  testator's  intention.  In  that 
case,  however,  it  was  held  the  will 
did  not  confer  power  to  sell,  and 
none  could  be  implied  from  the 
language  thereof.  The  case  is  sup- 
ported by  11  Am.  &  Eng.  Ency.  of 


Law,  2d  ed.,  1043,  and  cases  cited; 
7  Am.  &  Eng.  Ency.  of  Law,  2d 
ed.,  466,  and  cases  cited;  Hale  v. 
Hale,  125  111.  399;  Gammon  v.  Gam- 
mon, 153  111.  41;  11  Am.  &  Eng. 
Ency.  of  Law,  2d  ed.,  1045.  The 
provision  of  the  will  construed  be- 
ing: "My  land  and  all  of  the  per- 
sonal property  left,"  after  the 
widow's  death,  "be  equally  divid- 
ed between  all  my  children,  less 
the  following  sums  which  have 
been  paid  to  the  ones  named." 
Held,  does  not  necessarily  require 
a  sale  by  the  executor  to  carry 
out  the  terms  of  the  will,  since  a 
court  of  equity  has  power,  upon 
making  partition  of  the  land, 
when  called  upon  to  do  so,  to  ar- 
range and  adjust  advancements, 
so  as  to  carry  out  the  provisions 
of  the  will. 

40 — Simpson  v.  Simpson,  16  111. 
App.  174;  Long  v.  Long,  19  111. 
App.  285;  Kershaw  v.  Kershaw, 
102  111.  307;  Crum  v.  Sawyer,  132 
111.  443;  Gary  v.  Newton,  201  111. 
170;  Parsons  v.  Ely,  45  111.  235; 
Bishop  V.  Davenport,  58  111.  105; 
Galbraith  v.  McLain,  84  111.  379. 
This  case  arises  on  construction 
of  deed,  and  contract  between 
father  and  son,  in  consideration 
of  a  conveyance  of  land  by  the 
father  to  the  son,  that  he  will  re- 


158  THE  LAW  OF  ESTATES. 

may  be  the  subject  of  a  contract  of  sale,  and  when  fairly  made 
and  based  upon  a  valuable  consideration  will  be  enforced  by  a 
court  of  equity .^1 

217.  Executor's  interest.  It  has  been  repeatedly  held  by 
the  Illinois  courts  that  a  trustee  should  never  be  the  subject 
of  criticism  on  account  of  the  application  of  such  to  the  chan- 
cery courts  for  advice  in  the  discharge  of  his  duty.  And  where 
the  executor  or  trustee  is  in  doubt  as  to  what  should  be  done, 
it  is  beyond  question  his  duty  to  apply  to  a  court  of  equity, 
that  he  may  proceed  with  authority,  that  might  be  considered 
doubtful  until  the  court  had  placed  him  right.  If  a  person 
devise  his  or  her  lands  to  his  or  her  executor  to  be  sold,  then 
there  is  a  power  coupled  with  an  interest,  for  the  executor 
takes  possession  of  the  land  and  of  the  profits.  ^^  A  testator 
devised  all  his  property  to  G  in  trust;  first,  to  pay 
his  debts;  second,  to  set  off  and  pay  to  his  wife 
such  share  of  the  estate  as  she  was  entitled  to  by  the  laws  of 
Illinois;  third,  to  hold  the  remainder  in  trust  for  his  children. 
The  trustee  and  executor  was  empowered  to  control  and  man- 
age the  estate,  and  sell  and  convey  all  real  and  personal  prop- 
erty, with  power  to  execute  conveyances  therefor ;  to  invest  the 
proceeds  for  the  benefit  of  the  children,  as  the  trustee  should 
deem  best ;  to  use  such  portion  as  was  necessary  for  their  sup- 
port and  education,  and  generally  to  use  the  same  for  the  best 
interest  of  the  children  during  minority.  And,  in  trust  further, 
that  the  trustee  should  convey  the  property,  or  the  proceeds 
thereof,  to  the  children  when  they  should  attain  the  age  of 
twenty-one  years.  The  court  construing  this  will,  held :  That 
the  will  conferred  ample  power  to  sell  and  convey  real  estate, 
and  a  conveyance  of  a  portion  to  the  widow  in  lieu  of  her 

lease  to  his  brothers  and  sisters  41 — Hudson  v.  Hudson,   222  111. 

all  claim  in  expectancy  to  the  res-  527.     See  Chapter  50  of  this  work, 

idue  of  the  father's  estate.     Held,  "Reversions      and      Remainders." 

the    transaction     was    not     with-  (Post  852.) 

in  the  Statute  of  Frauds,  nor  con-  42 — Berger  v.  Bennett,  1  Caines 

trary  to  the  provisions  of  the  Stat-  Cas.  Exr.  15;  White  v.  Glover,  59 

ute  of  Wills.  111.   459.     In  this  case  it  is  held. 


CONSTRUCTION  OF  WILLS— CONTINUED.  159 

dower  and  all  claim  on  the  estate,  was  presumed  in  the  absence 
of  fraud,  to  be  for  the  best  interest  of  the  estate,  and  was 
within  the  power  conferred  by  the  will.^^ 

218.  Under  the  act  of  21  Henry  VIII.,  chapter  4,  in  forc6 
in  the  state  of  Illinois,  providing  that  the  qualified  and  acting 
executor  may  execute  the  will  when  the  others  "do  refuse  to 
take  upon  him  or  them  the  administration  and  charge  of  the 
same  testament  and  last  will  wherein  they  be  so  named  as 
executors,"  does  away  with  the  old  rule  of  common  law  before 
the  act  in  question,  that  two  or  more  executors  can  only  act 
jointly  in  the  exercise  of  the  power.  In  the  early  case  of  Ward- 
well  V.  McDowell,*'^  the  distinction  between  a  power  mandatory 
and  discretionary,  was  discarded,  and  the  current  of  the  authori- 
ties sustained  that  finding,  which  was  again  affirmed  in  the  case 
of  White  V.  Glover.^^ 

219.  In  Lambert  v.  Harvey,'^^  where  the  executor  of  a  will 
is  directed  to  sell  the  testator's  real  estate,  and  divide  the  pro- 
ceeds of  sale  between  certain  devisees,  it  was  held:  "The  ex- 
ecutor takes  only  a  power  of  sale,  that  being  all  that  is  necessary 
to  execute  the  will,  and  no  legal  estate  in  the  land." 

220.  The  application  of  the  statute  of  Illinois.  Where  there 
is  no  trust  duties  to  be  performed  under  a  devise  to  executors 
in  trust,  the  will  can  be  executed  under  section  3,  chapter  30, 
entitled  "  Conveyances.  "*'' 

that  a  decree  of  a  court  of  equity  Waldon,   3   Hill,  361;    McComb   v. 

licensing  the  conveyance  made,  al-  Waldon,  7  Hill,  335;     Gregory  v. 

though  made  without  having  jur-  Henderson,    4    Taunt.    772;    Oates 

isdiction,     would     not     affect     or  v.  Cooke,  3  Burr,  1684;   2  Jarman 

abridge    the    power    conferred    by  on  Wills,  199  et  seq. 

the  will.     In  this  case  the  trustee  43— White  v.  Glover,  59  111.  459. 

was  invested  with  a  power  coupled         ., o-.  tii    oca 

with   an   interest,   as   he   was   au- 
thorized to  sell  the  lands  and  to  ^5— 59  HI.  459. 
hold  and  possess  them  for  the  pur-  ^^     ^^^  I^^-  338. 
pose  of  the  trust.     See  Waldon  v.  47 — Starr    &    Curtis    Annotated 
McComb,   1    Hill,   111;    Bloome   v.  Statutes  of  Illinois,  with  Jones  & 


160  THE  LAW  OF  ESTATES. 

Note.  The  matters  in  question  being  naturally  connected 
with  testamentary  trusts  and  trustees,  their  powers  and  duties, 
we  refer  the  reader  to  the  subjects  suggested  in  this  work  for 
more  extended  consideration. 

221.  Misdescription — surrounding  cii'cumstances.  It  will 
be  found  the  courts  adhere  closely  to  the  rule  "that  extrinsic 
evidence  cannot  be  heard  to  alter,  detract  from  or  add  any- 
thing to  the  provisions  of  a  will. ' '  Where  the  language  is  clear 
the  construction  must  be  on  the  face  of  the  will  itself;  but  in 
certain  cases,  where  a  latent  ambiguity  is  found  to  exist,  the 
court  in  order  to  uphold  the  will,  and  give  effect  to  the  inten- 
tion of  the  testator,  will  look  to  the  surrounding  circumstances 
and  admit  evidence  to  assist  the  interpretation.  In  the  case  of 
Bradley  v.  Bees,  the  text  is  nicely  illustrated.'*^  The 
facts  show  the  testator,  at  the  time  of  making  his  will,  had 
seven  sons,  four  of  whom  were  minors  living  with  the  testator ; 
the  other  three  being  men  married  and  having  families  of  their 
own;  the  will  after  devising  a  certain  part  of  testator's  land 
to  his  infant  daughters,  contained  the  clause,  "the  remaining 
lands  owned  by  me  to  be  divided  between  the  four  boys, ' '  with- 
out any  other  designation.  It  being  held  in  construing  the 
will,  that  the  v/ordSj  "the  four  boys,"  meant  the  four  minor 
sons,  who  were  at  the  time  living  with  the  testator  as  a  part 
of  his  family;  that  there  was  no  ambiguity  on  the  face  of 
the  will,  the  inference  therefrom  being  that  he  had  but  four 

Addington's  Supplements  thereto,  larger  tract.  And  it  was  held  un- 
Vol.  3,  p.  914,  and  cases  cited;  Vol.  der  rules  of  construction  applied, 
4,  p.  254,  and  cases  cited;  also  Vol.  that  proof  by  parol,  that  the  testa- 
1,  p.  914;  See  Lawrence  v.  Law-  tor  directed  the  scrivener  to  draw 
rence,  181  111.  252;  Barclay  v.  the  will  so  as  to  give  only  forty 
Piatt,  170  111.  388;  Ure  v.  Ure,  185  acres  is  inadmissible.  As  a  mis- 
Ill.  228;  Kirkland  v.  Cox,  94  111.  take  in  drafting  a  will  by  the 
400;  Witham  v.  Brooner,  63  111.  draftsman  cannot  be  shown  and 
344.  corrected  upon  parol  evidence  in 
48 — 113  111.  327;  Bradley  v.  such  a  case.  See  Worrell  v.  Pat- 
Rees.  In  that  case  the  will  de-  ten,  69  111.  254,  as  to  the  correc- 
vised  land,  which  by  the  words  tion  of  mistakes  in  wills, 
used,  embraced  eighty  acres  in  a 


CONSTRUCTION  OF  WILLS— CONTINUED.  IGl 

sons;  but  on  proof  that  the  testator  had  seven  sons,  an  am- 
biguity was  made  apparent,  and,  being  a  latent  one,  was  ex- 
plained by  parol  evidence.  Parol  evidence  not  only  of  the 
previous  facts  known  to  the  testator,  and  of  present  circum- 
stances, under  which  the  will  was  made,  but  also  his  declara- 
tions, made  at  the  time  of  making  the  will,  as  well  before 
and  after,  might  be  resorted  to,  to  remove  the  ambiguity,  if 
any,  and  to  fix  the  objects  of  his  bounty.  And,  in  the  same 
case  it  was  held:  A  devise  of  the  "Southwest  quarter  of  the 
north  half  of  section  14,  town  8,  range  2  west, ' '  is  not  void  for 
uncertainty  in  the  description ;  it  being  the  same  as  the  south 
half  of  the  west  half  of  the  north  half  of  the  section;  and  if 
the  section  is  a  mile  square,  the  description  embraces  eighty 
acres  off  the  south  side  of  the  northwest  quarter  of  the  section. 
The  fact  that  the  testator  did  not  own  all  of  a  tract  of  land 
devised  by  him  by  a  good  description,  will  not  justify  the  court 
in  holding  the  devise  void.  The  devisee  in  such  case  will  take 
so  much  of  the  land  described  as  the  testator  did  own. 

222.  In  Bowen  v.  Allen,  the  subject  of  a  devise  was:^® 
*'My  house  and  lot  in  the  town  of  Potoka,"  succeeded 
by  a  particular  description  of  a  lot  on  which  no  house  was 
situated.  The  court  in  that  case  permitted  proof  to  be  shown 
that  the  testator  at  the  time  of  making  his  will  had  no  other 
house  in  the  addition  to  the  town  described;  holding,  the 
house  identified  was  the  house  devised,  and  that  the  former  de- 
scription being  complete,  the  latter  was  a  false  demonstration 
only. 

223.  In  Kurtz  v.  Hibner,  the  court  held:^^  If  the  testator 
had  described  the  property  as  his  own  the  conclusion  would  havj 
been  different. 

224.  In  Kirkland  V.  Conway,  the  devise  was  :^i  "My  real 
estate,   to-wit,"    describing   property   in   the   northeast   instead 

49—113  111.  59.  51—116  111.  439. 

50—55  111.  514. 

11 


1G2  THE  LAW  OF  ESTATES. 

of  the  northwest  quarter,  where  it  was  in  fact;  held,  that 
as  the  testator  did  not  own  the  land  described  in  the  will, 
there  was  created  a  latent  ambiguity,  and  the  extrinsic  circum- 
stances that  he  owned  the  other  land,  together  with  the  words 
"my  real  estate,"  enabled  the  court  to  reject  the  quarter  sec- 
tion as  false  demonstration,  and  apply  the  description  without 
adding  to  the  will.  But  in  order  to  apply  the  rule  of  construc- 
tion, it  was  held,  in  the  case  of  Holhrook  v.  Forsytlie,^-  the  land 
must  be  owned  by  the  testator ;  color  of  title  will  not  suffice. 

225.  In  Smith  v.  DennisMi,^^  the  testator  had  established 
by  agreement  with  a  neighbor,  a  corner  of  a  quarter  section  dif- 
ferent from  the  government  corner,  and  the  court  considered 
this  circumstance  or  agreement  in  construing  the  will. 

226.  In  Kaufman  v.  Breckenridge,^^  a  testator  devised 
to  his  wife  all  his  goods,  estate  and  chattels,  real,  per- 
sonal and  mixed,  'Ho  have,  hold  and  use  the  same  so  long  as 
she  might  remain  a  widow,"  said  goods,  estate,  etc.,  to  be  dis- 
posed of  and  used  agreeably  to  her  direction  and  approval, 
and  in  such  manner  as  she  "might  deem  most  conducive  to 
the  welfare  and  comfortable  subsistence  of  herself  and  chil- 
dren," who  were  mostly  dependent  on  the  testator  for  sup- 
port. The  opinion  in  that  case  holds:  Is  it  unreasonable 
to  suppose  that  it  was  only  the  widow's  estate  for  life  or  dur- 
ing widowhood  in  the  goods  and  chattels,  and  not  the  goods 
and  chattels  themselves,  which  the  testator  intended  she 
should  sell  for  the  support  of  the  family.  Item  fourth,  in  pro- 
viding that  no  sale  should  be  made  of  the  homestead,  ^ords 
some  implication  that  power  of  sale  of  the  whole  property  had 
been  given,  and  that  it  was  deemed  necessary  to  make  excep- 
tion of  the  homestead.  It  was  objected  that  all  of  the  extrinsic 
testimony  as  to  the  lands  being  unimproved  and  providing 
no  income,  and  that  relating  to  the  testator's  family,  etc.,  was 
improper  in  the  case.     The  court  holding  this  objection  is  not 

52—112  111.  310.  54—117  111.  305. 

53—112  111.  372. 


CONSTRUCTION  OF  WILLS— CONTINUED.  163 

well  taken,  rule  10  of  the  general  rules  of  construction  of  wills, 
laid  down  by  Jarman  on  Wills,  is:'^^  The  court  will  look  at 
the  circumstances  under  which  the  devisor  made  his  will,  as,  the 
state  of  his  property,  of  his  family  and  the  like.  "We  are  of 
opinion  that  by  this  will  the  widow  was  clothed  with  power  of 
disposition  of  the  absolute  estate  in  favor  of  herself  and  chil- 
dren; and,  that  by  the  exercise  of  that  power  her  grantees  took 
the  fee,  and  not  her  mere  life  estate  in  the  land." 

227.  Survivorship.  The  general  rule  in  the  state  of  Illinois, 
after  an  exhaustive  review  of  English  and  American  authori- 
ties, is  laid  down  by  the  supreme  court  "as  referring,  not  to 
the  termination  of  the  intermediate  estate,  but  to  the  testator's 
death,  unless  a  contrary  intention  is  manifest  from  the  will 
itself."  The  cases  in  this  state  hold  to  this  general  rule,  and  hy 
so  doing  have  made  the  distinction  between  the  technical  and 
the  literal  meaning  of  the  word  "survivorship."  To  illustrate, 
take  the  ease  of  Duryea  v.  Duryea;^^  the  words  in  the 
will  construed  were,  "should  either  of  my  said  children  above 
named,  depart  this  life  leaving  no  issue  him  or  her  surviving, 
the  share  of  the  one  so  dying  is  to  go  to  and  belong  to  the 
survivor  of  them,  his  or  her  heirs  and  assigns  forever,"  the 
court  holding  it  must  be  conceded,  we  think,  the  words,  cannot 
be  construed  as  a  limitation  over,  by  way  of  an  executory 
devise  to  the  heirs  of  such  devisee  as  shall  predecease,  accord- 
ing to  any  definition  given  in  an  executory  devise,  unless  the 
word  "survivor,"  as  used,  has  the  meaning  of  the  word 
"other,"  and  was  used  by  the  testator  in  that  sense.  There 
is  no  contention  the  word  "survivor,"  in  the  first  instance  of 
the  twelfth  division  of  this  will,  is  to  be  understood  in  its  lit- 
eral sense  of  survivorship,  and  should  the  construction  insisted 
upon  be  adopted,  it  would  involve  the  testator  in  the  absurdity 
of  using  it  in  the  very  next  sentence  in  the  sense  of  "other," 
which  has  always  been  regarded  as  an  unnatural  meaning,  and 
one  certainly  not  understood,  except  by  persons  familiar  with 

55— Vol.  2,  p.  841.  56—85  III.  47. 


164  THE  LAW  OF  ESTATES. 

the  subtle  learning  to  be  found  in  the  books  on  this  branch  of 
the  law.  Unless  for  the  strongest  reasons,  we  ought  not  to 
adopt  a  construction  that  would  involve  the  use  of  the  same 
word  in  such  widely  different  and  even  contradictory  sense  in 
the  same  paragraph.  Text  writers  lay  it  down,  the  word  ' '  sur- 
vivor,"  when  explained  by  the  context,  must  be  construed  in 
its  natural  sense ;  but  when  interpreted  according  to  its  literal 
import,  the  tendency  would  be  to  defeat  the  actual  intention 
of  the  testator ;  courts  will  readily  listen  to  arguments  drawn 
from  the  context,  for  reading  the  word  "survivor,"  as  synon- 
ymous with  "other.  "^''' 

228.  In  Blanchard  v.  Maynard,^^  the  will  contained  these 
words:  "It  is  my  will  that  at  the  expiration  of  the  trust 
hereinbefore  declared,  that  is  to  say,  at  the  end  of  ten 
years  after  my  decease,  all  my  said  estate  then  remaining, 
and  the  income  thereof,  shall  be  distributed  and  vest  in  my 
three  sons,"  naming  them,  and  their  heirs;  "and  I  do  hereby 
give,  devise  and  bequeath  the  same  to  them;  but  in  case  that 
either  of  my  said  three  sons  should  die  leaving  no  issue  of 
their  bodies,  then  I  give,  devise  and  bequeath  my  estate  to 
the  survivor  of  them."  In  giving  a  construction  to  this  will, 
the  court  held :  That  no  title  under  the  will  was  intended  to 
be  vested  in  either  of  the  testator's  sons,  until  ten  years  after 
his  death,  and  that  the  widow  of  one  of  the  sons  who  died 
before  that  time,  leaving  no  issue  of  his  body,  took  no  estate 
as  heir  of  her  husband,  or  dower  as  his  widow,  in  the  testa- 
tor's real  estate. 

229.  In  Arnold  v\  Alden,^^  words  of  survivorship  in  a  con- 
text, similar  to  that  in  the  present  will,  have  acquired  a  technical 

57 — Jarman  on  Wills,  p.  442;  2  pends  upon  the  testator's  inten- 
Redfield  on  Wills,  p.  372,  Sec.  2,  tion.  The  word  issue  in  that  case, 
and  cases  cited.  being  construed  as  synonymous 
58—103  111.  60.  with  "children"  and  the  word 
59 — 173  111.  229;  Arnold  v.  Al-  "issue,"  to  include  "grandchildren" 
den.  In  that  case,  it  is  held  the  must  be  qualified  or  otherwise  ex- 
meaning  of  the  word   "issue"  de-  plained    in    some    portion    of    the 


CONSTRUCTION   OP  WILLS— CONTINUED.  165 

meaning,  differing  from  the  sense  in  which  they  are  otherwise 
to  be  taken,  referring  the  survivorship  to  the  testator's  own 
death,^*^  The  weight  of  authority  both  here  and  in  England, 
therefore,  unquestionably  is  in  favor  of  applying  the  term  of 
survivorship  upon  the  devise  of  a  remainder,  to  the  death  of  the 
testator,  instead  of  the  time  of  the  termination  of  a  particular 
estate,  where  it  is  necessary  to  give  effect  to  the  probable  inten- 
tion of  the  testator  in  providing  for  the  issue  of  the  objects  of 
his  bounty  upon  the  death  of  their  parents  before  the  time  ap- 
pointed for  the  remainder  to  vest  in  possession ;  especially  where 
the  devise  is  to  the  individual  by  name,  and  not  to  them  as  a 
class.  Redfield  on  Wills  gives  the  following  ruler^^  "Where 
the  gift  is  to  specific  persons,  and  not  to  a  class,  and  it  is 
provided,  upon  the  death  of  one  of  them  without  issue,  the 
share  of  such  deceased  person  or  persons  shall  go  to  the  sur- 
vivor or  survivors,  it  becomes  very  apparent  that  by  survivor 
the  testator  must  have  intended  to  include  the  issue  of  such 
as  predeceased  those  who  died  without  issue.  If  this  were 
not  so,  and  those  who  died  without  issue  died  last,  there  would 
be  no  mode  of  giving  effect  to  the  gift  over.  "^^ 

230.  Charging  legacies  and  debts  on  land.  The  general 
rule  being,  "that  debts  and  pecuniary  legacies  are  to  be  paid 
from  the  personal  property,  and,  when  there  is  a  deficiency  of 
personal  property  for  that  purpose,  the  legacies  must  abate, 
unless  the  testator  charges  his  real  estate  with  their  payment. 
The  charge  upon  the  real  estate  may  be  made  by  express  direc- 
tions to  that  effect  contained  in  the  will,  but  the  intention  of 
the  testator  to  charge  the  real  estate  with  the  payment  of  the 
legacies  may  be  implied  from  the  whole  will  taken  together.^^ 

will  construed.  The  definite  mean-  61 — Vol.  2,  3d  ed.,  Sec.  15. 
ing  of  the  word  "children"  in  a  62— See  holding  to  rule  in  Red- 
legal  sense,  denotes  immediate  field  on  Wills  (nn^e  229) ;  Bronson 
x)ffspring  and  will  not  be  construed  v.  Hill,  31  Md.  181';  Austin  v.  Bris- 
to  mean  grandchildren  unless  a  tol,  40  Conn.  120. 
strong  case  of  intention  or  neces-  63 — Heslop  v.  Gratton,  71  III. 
sary  implication  requires  it.  528;  Williams  v.  Williams,  189  111. 
60— Moore  v.  Lyons,  25  Wend.  500.  In  this  case  construing  the 
119. 


166  THE  LAW  OF  ESTATES. 

231.  It  is  a  general  rule,  well  established  by  both  English 
and  American  authorities,  that  where  legacies  are  given  gen- 
erally, and  the  residue  of  the  real  and  personal  estate  is  after- 
wards given  in  one  mass,  the  legacies  are  a  charge  upon  the 
residuary  real  estate  as  well  as  the  personal  estate.^'* 

232.  In  Eeid  v.  Corrigan,^^  the  court  quoting  from  Duncan 
V.  Wallace,  say:  "Where  a  testator  gives  legacies,  and  so  dis- 
poses of  all  his  personal  property  that  it  cannot  be  made  availa- 
ble for  the  payment  of  the  legacies,  the  natural  presumption  is, 
that  he  intended  to  charge  the  land  with  the  payment  of  the 
legacies,  since  a  different  rule  would  attribute  to  him  a  purpose 
to  make  a  gift  in  appearance  and  not  in  reality."  In  Eeid  v. 
Corrigan,  it  is  held:^^  If  the  residuary  clause  in  this  will  had 
read  "all  the  rest,  residue  and  remainder  of  my  estate  or  prop- 
erty," it  would  scarcely  have  been  questioned,  that  the  testator 
only  intended  appellees  to  have  so  much  of  the  rest  of  his  real 
estate,  as  remained  after  the  payment  of  the  legacy  to  appellants. 
Under  the  law  the  personal  estate  vests,  upon  the  death  of  an  in- 
dividual in  his  personal  representatives,  and  at  once  is  the  nu- 
cleus to  create  a  fund  for  the  payment  of  his  debts,  and  in  no 
manner  by  will  can  he  divest  his  estate  from  administration. 
The  personal  estate  being  the  primary  fund  for  the  payment  of 
debts  in  Illinois,  it  is  usually  exhausted  before  the  real  estate  is 
touched  for  such  purpose. 

233.  In  Bucher  v.  Bucher:^'^  There  was  a  devise  of  land 
and    all    personal    estate    not    otherwise    disposed    of,    after 

will  it  is  held:    Where  a  testator  upon  residuary  real  estate.     The 
bequeaths  legacies  to  his  various  decision  follows  the  cases  of  Reid 
sons  and  daughters,  which  aggre-  v.  Corrigan,  143  111.  402,  and  Dun- 
gate  more  than  the  amount  of  his  can  v.  Wallace,  114  Ind.  169. 
personal     property,     and     devises  64 — 13    Am.    &    Eng.    Ency.    of 
"the  rest,  residue  and  remainder  Law,   1st   ed.,   p.   117;    and   cases 
of  my  estate    .    .    .    to  my  sons  cited  in  notes, 
and  daughters,  to  share  and  share  65 — Reid    v.    Corrigan,    143    111. 
alike,"    such    residue   is   given   in  402;  114  Ind.  169. 
one  mass  and  legacies  are  a  charge  66—143  111.  402. 

67—86  111.  381. 


CONSTRUCTION  OF  WILLS— CONTINUED.  167 

payment  of  debts,  to  the  widow,  who  was  the  executrix  under 
the  will;  the  court  in  that  case  applied  the  general  rule  "that 
the  executor  or  administrator  has  no  concern  with  the  real 
estate;  that  he  is  not  entitled  to  receive  the  rents  and  profits, 
for  they  belong  to  the  heirs  or  devisees;  and  that  the  only 
power  of  the  executor  or  administrator  with  respect  to  the 
realty,  is,  as  given  by  the  statute,  to  petition  the  court  for 
leave  to  sell  it  for  payment  of  the  debts  of  the  estate,  and  to 
make  sale  of  it  for  such  purpose  upon  license  given."  This 
is  no  more  than  the  law  itself  declares.  It  makes  the  land 
of  a  decedent  subject  to,  and  liable  for,  the  payment  of  debts 
when  necessary.  The  expressions  of  the  will,  we  consider, 
adds  nothing  to  the  law  in  this  regard.  The  power  and  duties 
of  the  executrix,  as  executrix,  in  respect  to  the  application 
of  real  estate  or  the  rents  and  profits  of  it  to  the  payment  of 
debts,  were  no  greater,  and  none  other,  than  they  would  have 
been  under  the  law,  without  the  will.  It  was  our  duty  to 
ascertain  the  object  and  meaning  of  the  statute,  from  the  act 
itself  and  from  other  acts  in  pari  materia.  The  interpretation 
should  never  lead  to  an  absurdity,  nor  defeat  the  object  of  the 
law.  Ordinarily  the  personal  property  of  a  deceased  person 
is  the  primary  fund  for  the  payment  of  debts;  but,  unless  in 
this  particular  case  the  provisions  of  the  statute  are  to  be 
regarded  as  having  modified  the  rule,  then  the  statute  as  to 
nuncupative  wills,  will  often  be  inoperative,  though  the  de- 
ceased may  leave  property  sufficient  to  fulfill  his  will  as  well 
as  to  satisfj''  his  creditors.  In  the  case  in  question,  the  testa- 
tor indicated  most  unmistakably  his  intention  to  exempt  his 
personal  estate  from  the  payment  of  his  debts,  and  this  inten- 
tion should  be  given  effect.  In  this  case  the  personal  estate 
has  been  disposed  of,  subject  to  the  payment  of  debts,  if  the 
real  estate  prove  insufficient.  A  just  and  true  account  may 
therefore,  be  rendered  of  it  by  the  administrator,  within  the 
sense  and  spirit  of  the  statute.  We  think  that  the  creditors 
should  first  exhaust  the  real  estate,  and  in  this  way  the  entire 
law  is  maintained,  the  rights  of  all  the  parties  preserved,  and 


168  THE  LAW  OF  ESTATES. 

the  disposition   of  the  personalty  by  the  deceased  is  firmly 
fixed. 

234.  In  McCidlom  v.  Chidester,^^  a  nuncupative  will, 
reduced  to  writing  and  probated  as  required  by  statute^ 
gave  testator's  personal  property  to  W.  The  latter  being  ap- 
pointed executrix  gave  bond  with  security ;  the  bond  being  ap- 
proved the  executrix  took  possession  of  the  personal  property 
and  used  it  as  her  own  under  the  terms  of  the  will ;  afterwards 
the  original  letters  were  revoked,  and  an  administrator  de 
ionis  non  was  appointed,  and  suit  commenced  upon  the  bond 
of  the  executrix.  The  testator  died  seized  of  unincumbered 
real  estate  of  the  value  of  $2,000  and  debts  of  $241.00  was 
allowed  against  the  estate.  The  court  construing  and  giving 
effect  to  the  will  say :  It  is  a  universal  maxim  that  the  design 
and  intent  of  the  framers  of  the  law  shall  prevail.  It  will 
be  noted  in  this  case,  the  real  estate  is  nearly  ten  times  the 
value  of  the  debts  allowed,  and,  that  such  real  estate  was 
unincumbered  and  not  chargeable  with  any  legacy;  and,  of 
course  was  liable  to  be  converted  into  a  fund  to  pay  just  claims 
against  the  estate  by  following  the  directions  of  the  statute. 
The  reasoning  of  the  court  under  such  conditions,  being,  the 
creditors  had  no  right  to  resort  to  the  personalty,  for  in  such 
case,  the  devisee  would  be  deprived  of  all  benefit  under  the 
will,  and  the  intention  of  the  testator  not  carried  out.  Con- 
cluding as  the  court  does  in  these  words:  "A  rule  of  law 
which  has  no  application,  by  reason  of  the  facts,  should  not 
operate  such  marked  injustice,  without  being  necessary  for 
the  protection  of  creditors." 

235.  Miscellaneous  cases  charging  debts  and  legacies.     It 
will  be  noted  in  examining  the  cases  cited,  where  the  courts 

68—63    111.    477.      McCullom    v.  9  Peters,  461;   Trimmer  v.  Rayne, 

Chidester  given  at  some  length  is  9  Ves.   209;    Aldrich  v.  Cooper,   8 

an   important  case   in   support  of  Ves.  382;    Selby  v.  Selby,  4  Russ. 

the  text.    The  opinion  in  that  case  Eng,  Ch.  336,  which  has  been  ap- 

by  Justice  Thornton    followed  the  plied  in  similar  cases  ever  since, 

doctrine  of  Burtou  v.  Knowlton,  3  See  authorities  {ante  227,  228,  229, 

Ves.    107;    Fenwick   v.    Chapman,  230,  232,  233). 


CONSTRUCTION  OF  WILLS— CONTINUED.  169 

are  called  upon  to  construe  a  will,  they  always  endeavor  by 
the  modern  rules  to  uphold  the  will  and  give  it  effect;  they 
never  set  the  same  aside  in  whole  or  in  part,  where  it  is  pos- 
sible by  the  instrument,  aided  by  well  established  ancient  and 
modern  rules  to  sustain  the  will.  The  fundamental  rule  of 
interpretation,  which  controls  all  others  is  applied  to  arrive 
at  the  intention  of  the  testator,  as  gathered  from  the  entire 
will,  and  all  the  words,  expressions  and  phases  thereof.  And 
so  the  miscellaneous  cases  are  cited  to  indicate  the  modern 
mode  of  construction  and  the  necessity  of  these  modern  rules 
as  applied  in  furtherance  of  the  intention  of  the  testator. 

236.  In  Johnson  v.  Johnson,^^  it  was  held:  a  charge  may  be 
placed  upon  the  life  interest  of  a  life  tenant,  and  under  the  con- 
struction given  the  will  in  that  case,  the  life  estate  could  not  be 
enlarged  to  a  fee. 

237.  In  Stickel  v.  Crane,''^  the  testator  bequeathed  to  his 
wife  all  his  personalty  and  $3,000  to  be  raised  and  paid  as 
directed  in  the  will;  and  to  each  of  his  children  $50,  to  be 
raised  in  the  same  manner.  The  will  authorized  his  ex- 
ecutrix, his  widow,  "to  sell  and  convey,  or  not  to  sell,  at  her 
discretion,  any  and  all  the  real  estate  at  such  time  or  tiines, 
and  on  such  terms,  as  she  might  deem  best  for  the  estate,  and 
out  of  the  proceeds,  if  sale  was  made,  she  was  directed  to  pay 
legacies,  the  residue  of  the  proceeds  to  be  safely  invested." 
At  the  death  of  his  wife  the  testator  directed,  that  such  of 

69 — 98  111.  570.  tate    is    afterwards    given    in    one 

70—189     111.      210.     Stickel     v.  mass,  the  legacies  are  considered 

Crane.     In  that  case  the  general  a  charge  on  the  residuary  real  as 

rule  is  given,  viz.:     In  the  absence  well  as  personal  property.     Lewis 

of  an   expressed   intention   to  the  v.  Darling,  16  Howe,  1;   Smith  v. 

contrary,  legacies  are  payable  pri-  Fellows,   131  Mass.   20;   Wilcox  v. 

marily  out  of  the  personal  estate,  Wilcox,    13    Allen,    252;    see    also 

yet  it  is  a  rule  of  property,  both  cases  cited  in  13  Am.  &  Eng.  Ency. 

in  England  and  most  of  the  courts  of  Law,  p.  117;  Greeville  v.  Brown, 

of   this    country,    that   if   legacies  7  H.  L.  Cas.  697;  Sloan  v.  Graham, 

are  given  generally,  and  the  resi-  85  111.  26;  Etelmesser  v.  Ebelmes- 

Que  of  the  real   and   personal   es-  ser,  99  111.  541. 


170  THE  LAW  OF  ESTATES. 

his  real  estate  as  remained  undisposed  of,  and  the  proceeds 
of  such  as  had  been  sold,  should  descend  to  his  children.  Held, 
that  the  legacies  to  his  wife  and  children  were  vested,  and  at 
once  became  a  charge  on  all  his  real  estate,  and  so  remained 
until  satisfied,  though  the  executrix  in  that  case  made  no  sale 
to  satisfy  the  legacies. 

238.  In  McFarland  v.  McFarland,  it  was  heldr'^i  Where 
legacies  are  made  a  charge  on  the  real  estate  devised,  the  dev- 
isees can  not  complain,  that  such  charges  are  fixed  as  a  lien, 
and  given  preference  over  other  liens. 

239.  In  Daily  v.  Wilkie,  it  was  held,'^^  t^g  ^yjn  in  that  case, 
directing  the  payment  of  money,  creates  a  charge,  and  a  court  of 
equity  will  enforce  the  lien  of  a  legacy  so  charged,  subject  to  the 
terms  and  conditions  as  limited  by  the  provisions  of  the  wall. 

240.  In  Irwin  v.  Walpert,'^^  where  the  will  directed  an  an- 
nuity to  be  paid  out  of  the  rents  and  profits,  such  devise  does 
not  create  a  charge  upon  the  coipus  of  the  land.  But  where 
the  will  under  construction  creates  a  charge  upon  the  realty 
such  is  protected  as  a  lien.'^a 

71 — 177   111.   208;    McFarland  v.  implied  to  confer  a  fee  if  the  pay- 

McFarland.     Under  that  case  the  ment    of    a    debt    or    legacy    was 

rules    of    3     Washburn     on    Real  charged    upon    the    devisees     per- 

Property,      5th      ed.,      563;      and  sonally.     The  McFarland  case  fol- 

Schouler  on  Wills,  p.  592,  are  giv-  lowing    the    rules    cited,    and    the 

en  and  applied.     In  Washburn  "If  doctrine    in     harmony    therewith 

the  terms  of  a  devise  clearly  in-  laid   down  in  the   cases   of  Funk 

dicate  an  intention  in  the  devisor  v.  Eggleston,  92  111.   515;   McClel- 

to  dispose  of  his  entire  estate  in  land  v.  Turner,  15  Me.  463;   Var- 

the    property   devised,    it   will    be  ner  v.  Stevens,  22  Me.  331;  Harvey 

construed   to   convey   a   fee."     In  v.  Olmstead,  1  N.  Y.  483;   Snyder 

Schouler:      "Whenever,    expressly  v.  Nesbeth,  77  Md.  576.     And  see 

or  by  implication,  the  will  shows  also  Illinois  Land  and  Loan  Co.  v. 

the  purpose  to  give  one's  property  Bonner,  75  111.  315. 
in   fee  simple,  that  purpose  shall         72 — 111  111.  383. 
prevail."     At  common  law,  though         73 — 128  111.  527. 
a    devise    contained    no   words   of        73a — Bailey    v.    Bailey,    115    111. 

limitation   or  inheritance,   it  was  555. 


CONSTRUCTION  OF  WILLS— CONTINUED. 


171 


241.  In  Richardson  v.  Banson,  it  is  held,'^^  a  testamentary 
disposition  of  real  estate,  or  the  rents  of  the  same,  is  null  and 
void  as  to  the  creditors  of  the  testator. 

242.  In  Richardson  v.  Eveland,  the  rule  from  1  Pomeroy's 
Eq.  554,  as  follows  is  appliedJ^  "The  will  remaining  ambula- 
tory, a  subsequent  gift  or  advancement  by  the  testator  to  the  leg- 
atees, with  the  intention  that  it  should  be  in  lieu  and  discharge  of 
the  legacy,  would  be  an  ademption  thereof,  and  in  such  case  the 
particular  legacy  adeemed  would  be  removed  or  taken  away  by 
the  act  of  the  testator.  In  the  same  case,  the  rule  from  1  Roper 
on  Legacies,  is  applied.  "That  if  there  be  a  grant  or  devise  of 
the  beneficial  interest  in  lands  charged  with  the  payment  of  debts 
or  legacies,  and  not  upon  express  trust  to  pay  the  same,  the 
grantee  or  devisee  is  entitled  to  the  surplus  remaining  after  dis- 


74—90  111.  App.  258. 

75—126  111.  42;  Richardson  v. 
Eveland.  In  that  case  the  testator 
owning  between  four  and  five  hun- 
dred acres  of  land,  devised  to  his 
son  one  hundred  and  ninety  acres 
thereof,  subject  to  the  payment  of 
the  sum  of  $5,000  to  the  testator's 
seven  daughters,  and  then  devised 
the  sum  so  charged,  with  the  resi- 
due of  his  estate,  real  and  person- 
al, to  the  daughters.  Afterwards, 
the  testator  conveyed  a  part  of  the 
same  and  other  lands  to  the  son, 
a  part  of  which  was  stated  in  the 
deed  to  be  subject  to  the  charges 
and  conditions  named  in  the  will, 
and  still  later,  sold  to  a  third  par- 
ty one  of  the  tracts  devised  to  the 
son  for  $5,600,  and  he  then  gave 
to  each  of  his  daughters  $2,500 
and  to  the  son  $10,  unaccompanied 
with  any  declaration  or  statement 
of  his  intent  in  so  doing.  Held, 
in  such  case  the  payment  to  the 
daughters  was  not  to  be  taken 
as   an    ademption   or   satisfaction 


of  the  legacy  of  $5,000  to  the 
daughters,  and  that  the  son  was 
bound  to  pay  that  sum  to  his  sis- 
ters. (See  authorities  on  which 
opinion  is  based  in  Richardson  v. 
Eveland,  supra,  page  ^4.)  It  ap- 
pears the  court  applied  the  rule 
supported  by  authorities  in  Wig- 
ram  on  Wills  (2d  Am.  ed.)  161, 
holding:  "Where,  as  here,  the  gift 
is  unaccompanied  by  any  written 
instrument,  the  declarations  and 
conduct  of  the  testator  in  respect 
of  the  subject  matter  being  con- 
sidered, and  in  breaking  in  upon 
the  portions  as  fixed  by  his  will, 
from  which  an  inference  of  his 
intention  in  making  the  gift  can 
be  logically  and  legitimately 
drawn,  are  competent  to  be  con- 
sidered, whether  contemporaneous 
with  or  prior  or  subsequent  to  the 
gift,"  citing  Richards  v.  Humph- 
reys, 15  Pick.  133;  Howz  v.  Mal- 
let, 4  Jones'  Eq.,  194;  1  Pomeroy's 
Eq.,  564;  1  Roper  on  Legacies, 
Chap.  9,  Sec.  1,  Chap.  12,  Sec.  1. 


172  THE  LAW  OF  ESTATES. 

charging  the  debts  and  legacies  charged ;  and  if  the  charge  fails, 
the  advantage  accruing  from  such  failure  will  enure  to  his  ben- 
efit." Thus  it  will  be  observed  the  donee  takes  the  surplus  after 
the  charges  are  satisfied ;  but  under  a  gift  in  trust  to  pay  a  cer- 
tain legacy,  the  donee  does  not. 

243.  Charges  upon  gifts  election  applied.  The  rule 
adopted  by  the  Illinois  courts,  is  to  the  effect,  that  where  the 
legacy  is  to  a  stranger,  the  intention  of  the  testator  to  satisfy 
the  legacy  by  a  subsequent  gift  (unless  the  legacy  and  gift 
be  for  the  same  specific  purpose),  must  be  expressed;  and  will 
arise  upon  construction  of  express  words  of  the  donor,  in  the 
instrument,  unaided  by  any  presumption  in  favor  of  the  sat- 
isfaction of  the  prior  legacy.  Again,  if  the  relation  of  the 
donor  be  that  of  a  parent,  the  presumption  at  once  arises,  that 
the  subsequent  gift,  if  ejusdem  generis,  w^as  intended  to  be 
in  satisfaction  of  the  prior  legacy,  based  upon  the  equitable 
presumption  that  a  parent,  or  one  standing  in  loco  parentis 
and  owing  a  like  natural  duty  to  all  of  his  children,  would  not, 
after  having  voluntarily  established  the  portion  each  should 
receive  of  his  estate,  take  from  one  to  his  detriment,  for  the 
purpose  of  benefiting  another.  The  rule  being  created  by 
courts  of  equity,  on  account  of  their  leaning,  against  double 
portions,  and  to  facilitate  the  equitable  distribution  of  estates.'^® 
The  doctrine  seems  to  be  settled,  that  if  a  legacy  be  given  by  a 
parent  or  one  standing  i7i  loco  parentis,  and  the  testator  after- 
wards makes  an  advancement  or  gift,  of  money,  or  property 
ejusdem  generis,  to  the  same  beneficiary^,  the  presumption  will 
arise  that  the  gift  was  intended  in  satisfaction  or  substitution 
for  the  prior  legacy,  and  imless  the  presumption  be  rebutted,  an 
ademption  in  full,  or  pro  tanto,  as  the  gift  is  equal  to  or  less  than 
the  prior  benefit,  will  take  place.  But  this  rule  resting  upon  a 
presumption  of  fact,  that  is, — the  intention  of  the  testator  or 

76 — Sussie  v.  Lowther,   2  Hase,     424;    1  Pomeroy's  Eq.  554;   Roper 
on  Legacies,  Chap.  9,  Sees.  1  to  12. 


CONSTRUCTION  OF  WILLS— CONTINUED.       173 

clonor, — extrinsic  evidence  is  admissible  to  aid  or  rebut  tlie 
presumption.'^^ 

244.  Doctrine  of  election  applied  to  dower  and  other  rights. 
Chief  Justice  Marshall,  in  I/ubert  v.  Wren,  said:^^  "It  is  a 
maxim  of  a  court  of  equity  not  to  permit  the  same  person  to 
hold  under  and  against  a  will.  If  it  be  manifest  from  the  face 
of  the  will,  that  the  testator  did  not  intend  the  provisions  it  con- 
tains for  his  widow  to  be  in  addition  to  her  dower,  but  to  be  iu 
lieu  of  it,  if  his  intentions,  discovered  in  other  parts  of  his  will, 
must  be  defeated  by  llie  allotment  of  dower  to  the  widow,  she 
must  renounce  either  her  dower  or  the  benefit  she  claims  under 
the  will. ' '  In  Birmingham  v.  Kirwan,'^^  Lord  Rosedale  said : ' '  The 
rule  of  election  seems  to  me  to  apply  to  every  species  of  right, 
and  I  cannot  find  the  right  of  dower  is  more  protected  than 
any  other;  the  assertion  by  the  widow  of  a  right  of  dower  in 
the  house  and  demesne,  would  be  inconsistent  vnth.  the  dispo- 
sition of  the  house  and  demesne  contained  in  the  will,  and 
therefore  the  widow  cannot  have  both."  The  doctrine  was 
first  applied  to  its  full  extent  by  the  Supreme  Court  of  Illinois 
in  Williams  v.  Wilbanks;^^  and,  again  in  the  early  case  of  Brown 
V.  Pitney ;^^  in  which  the  court  said:  "Let  us  apply  these  well 
settled  principles  to  claims  of  dower  in  this  state,  where  the  hus- 
band has  died  leaving  a  will.  In  such  cases,  under  our  existing 
statute  (1845),  which  is  the  law  now  or  since  the  statute  of 
1872,  if  the  will  devise  land  to  the  wife,  such  devise  is  of  itself 
a  bar  of  dower,  unless  otherwise  expressed  in  the  will;  but  the 

77 — Cooper    v.    Cooper,    L.    H.  and  charges  such  with  the  legacy. 

€han.    813;    Wigram    on   Wills,    2  Langworthy  v.  Golden,  28  111.  App. 

Am.  ed.  161.     The  lull  and  elabo-  119;  Cashman's  Estate,  28  111.  App. 

rate  discussion  of  rule  cited,  and  346;    Irwin   v.    Wallpert,    128    111. 

the  application   of   the   same  will  527;  Bailey  v.  Bailey,  115  111.  555; 

be   found    in   Richardson   v.    Eve-  Decker    v.    Decker,    121    111.    341; 

land,   126   111.   37    (ante   242).     It  Caruthers  v.   McNeil,   97   111.   256. 

is  held  by  the  Illinois  courts  that  78 — 7   Cranch.   370. 

where  the  personal  property  is  in-  79 — 2  Schoales  &  Lefroy,  444. 

sufficient  to  pay  a  gift  or  legacy,  80 — 18  111.  17. 

a  lien  attaches  to  the  real  estate  81 — 39  111.  468. 


174 


THE  LAW  OF  ESTATES. 


widow  may  nevertheless  renounce  the  will  and  claim  her  dower. 
On  the  other  hand,  a  bequest  of  personalty  does  not,  of  itself, 
like  a  devise  of  realty,  bar  the  dower,  since  the  revision  of 
1845. 

245.  Election  express  and  implied.  Election  is  said  to  be 
of  two  kinds,  express  and  implied;  the  implied  election  is  also 
called  equitable  election,  for  the  reason  that  it  rests  upon  the 
equitable  principles  stated  above;  while  an  express  election 
arises  from  the  terms  of  the  will.^^  j^  Cowdry  v.  Hichcock,  it 
is  held:*^  A  gift  in  lieu  of  dower  and  "of  all  other  rights,  in- 
terest and  claims"  in  the  estate  will  put  the  widow  to  an  elec- 
tion, even  before  she  can  accept  the  statutory  award.** 


82 — Bispham's  Principles  of 
Equity,  Sec.  296;  2  Roper  on  Lega- 
cies, 1583,  et  seq. 

83—103  111.  262. 

84— Wooley  v.  Schrader,  116  111. 
37;  Ditch  v.  Sennott,  117  111.  362; 
Graham  v.  Dodge,  122  111.  534.  In 
Ditch  V.  Sennott,  supra,  it  is  held, 
the  doctrine  of  election  does  not 
apply  where  the  testator  has  but 
a  part  interest  in  an  estate  which 
he  devises;  but  even  in  such  a 
case,  if  it  is  apparent  from  the 
terms  of  the  will  that  the  testator 
intended  to  devise  the  whole  es- 
tate, including  the  interest  of  a 
third  person,  then  the  doctrine 
will  apply  as  to  such  third  per- 
son, if  a  devisee.  See  rule  and 
authorities  cited  on  page  367  of 
that  opinion.  The  clause  of  the 
will  construed  in  the  Ditch  v.  Sen- 
nott case,  supra,  is  substantially 
where  the  testator  owning  but  an 
individual  interest  in  certain 
lands,  by  his  will  devised  the 
whole  estate  as  follows:  "I  give 
and  bequeath  to  J.  S.  one  hundred 
and    fourteen   acres   of   land    (de- 


scribing it),  to  be  set  off  to  him 
so  as  to  include  all  the  land  I  own 
in  said  claim  and  survey,  except 
the  part  of  the  same  already  re- 
served for  A.  M.,  and  also  to  in- 
clude all  the  lands  in  said  quarter 
section  which  I  own  lying  south 
of  the  road  recently  located  from 
T.,  to  East  Prairie  Union  Church." 
Held,  as  the  words  "own"  did  not 
refer  to  the  undivided  interest  of 
the  testator,  but  to  the  extent  of 
the  entire  claim  in  the  survey,  as 
appears  from  a  prior  clause  de- 
vising a  part  of  the  claim  to  A. 
M.,  that  it  was  evident  the  testa- 
tor intended  to  devise,  not  the  un- 
divided interest  in  the  claim  and 
survey,  merely,  but  the  whole  es- 
tate. In  the  case  of  Gorham  v. 
Dodge,  supra  (84),  a  testatrix  be- 
queathed to  her  daughter  $700, 
and  devised  her  homestead  to  her 
son,  and  the  daughter  accepted  the 
bequest  to  her,  it  was  held,  that 
the  latter  was  thereby  estopped 
from  enforcing  the  specific  per- 
formance of  a  parol  agreement  of 
the    testatrix    to    give    the    home- 


CONSTRUCTION  OF  WILLS— CONTINUED.       175 

246.  Ademption  of  legacies.  The  doctrine  is  generally  ap- 
plied, when,  in  the  construction  of  a  will,  it  appears,  a  subse- 
quent gift  or  advancement  by  the  testator  to  the  legatee  has 
been  made,  with  the  intention  that  it  should  be  in  lieu  and 
discharge  of  the  legacy.  The  court  in  such  case,  under  the 
fundamental  rule  of  construction,  will  look  to  the  words, 
phases  and  surrounding  circumstances,  to  arrive  at  the  inten- 
tion of  the  testator;  and  when  an  ademption  is  established,  it 
may  operate  to  satisfy  in  whole  or  in  part  the  legacy  to  which 
the  doctrine  is  applied.^^ 

247.  In  Richardson  v.  Eveland,^^  it  was  contended  that 
the  gift  or  advancement  of  $2,500  to  each  of  the  testator's 
daughters,  on  the  occasion  of  the  family  reunion  in  celebration 
of  the  68th  birthday  of  the  testator,  was  an  ademption  of  the 
devise  of  $5,000  to  said  daughters,  jointly,  made  by  his  will 
a  charge  upon  the  land  devised  to  the  appellant,  to  be  paid 
by  him  to  said  daughters  within  one  year  after  the  testator's 
death.  The  court  determining  whether  an  ademption  has  taken 
place,  or  the  doctrine  relating  thereto  applicable,  always  ob- 
serves whether  the  donor  stands  in  the  place  of  a  parent,  or 
as  a  stranger  to  the  donee ;  also,  if  there  are  words  accompany- 
ing the  subsequent  gift,  sufficiently  expressed  to  show  an  in- 
tention on  the  part  of  the  donor,  so  the  latter  benefit  should 
be  in  substitution  of  the  former.  In  case  the  legacy  is  to  a 
stranger,  the  intention  of  the  testator  to  satisfy  the  legacy  by 
a  subsequent  gift  (unless  the  legacy  and  gift  be  for  the  same 
specific  purpose),  must  be  expressed.  The  question  then  arises 
upon  construction  of  the  express  words  of  the  donor,  unaided 
by  any  presumption  in  favor  of  the  satisfaction  of  the  prior 
legacy.  If  the  relation  of  the  donor  be  that  of  parent,  the  pre- 
sumption at  once  arises,  that  the  subsequent  gift,  if  ejusdem 
generis,  was  intended  to  be  in  satisfaction  of  the  prior  legacy. 

stead  to  the  daughter  on  the  death  The   doctrine  of   election   in   that 

of  the  former.     Having  elected  to  case  being  applied, 

take  under  the  will,  the  daughter  85 — 1  Pomeroy's  Eq.  Jur.,  Sees, 

could   not   set   up   a   claim  which  524-557;   1  Roper  on  Legacies,  365. 

would  defeat  the  devise  to  the  son.  86 — 126  111.  37. 


176  THE  LAW  OF  ESTATES. 

It  is  said  the  rule  was  created  by  courts  of  equity  on  account 
of  their  leaning  against  double  portions,  and  to  facilitate  the 
equitable  distribution  of  estates. 

248.  The  application  of  the  word  "money"  as  used  in 
will.  The  general  rule  is,  "that  a  simple  bequest  of  money, 
in  the  absence  of  any  thing  in  the  context  to  show  that  the 
word  'money'  is  used  out  of  its  ordinary  or  popular  signifi- 
cation, will  not  include  personal  estate  in  general,  but  will  be 
confined  to  money  strictly  so  called. '"^^  In  Decker  v.  Decker,  it 
is  said  :^^  * '  On  the  other  hand,  it  is  equally  clear  that  the  word 
'money'  or  'moneys'  is  often  employed  in  making  testamentary 
disposition  under  circumstances  hardly  distinguishable,  in  the 
general  sense  of  property  or  personal  estate.  When  the  term  is 
thus  used,  it  most  generally  has  reference  to  the  residue  of  the 
personal  estate  after  certain  charges  upon  it  have  been  satis- 
fied; such  as  the  payment  of  funeral  expenses  and  the  like. 
Moreover,  an  examination  of  the  cases  will  show,  that  gener- 
ally, where  this  construction  has  been  adopted,  the  contrary 
view  would  have  resulted  in  leaving  a  portion  of  the  testator's 
estate  undisposed  of  by  will, — a  view  which  courts  are  always 
disinclined  to  adopt,  on  the  ground  that  it  is  contrary  to  the 
presumed  intention  of  the  testator."  After  applying  the  rules, 
it  is  held  in  the  Decker  case,  that  the  term  "money"  in  the 
connection  used,  was  intended  to  express  the  residuum  of  the 
personal  estate  after  the  payment  of  all  debts  and  funeral 
expenses;  this  is  strongly  fortified  by  the  implication  arising 
from  the  use  of  the  qualifying  word  "remaining." 

249.  Per  capita  and  per  stirpes.  The  rule  is  established  in 
construing  a  will,  that  where  a  legacy  is  to  the  children  of 
several  persons,  such  take  per  capita.  A  devise  of  an  estate 
"to  be  divided  equally  among  my  heirs  at  law,"  not  naming 
them,  has  reference  to  the  statute  of  descent,  and  heirs  will 
take  per  stirpes.^^     The  rule  established  by  the  Supreme  Court 

87 — Williams  on  Executors,  Sec.  89 — 2  Jarman  on  Wills,  34;  2 
1190.  Story's  Eq.  Jur.,  289,  and  notes. 

88—121  111.  347. 


CONSTRUCTION  OP  WILLS— CONTINUED.  177 

of  Illinois  in  Richards  v.  Miller ^^  is  to  the  effect:  That  when 
the  statute  is  invoked  to  ascertain  the  persons  who  take  a  devise 
or  bequest  by  a  general  description,  its  provisions  as  to  the  quan- 
tity each  shall  take  must  also  be  observed.  In  Kelly  v.  Vigas,^^ 
it  is  said:  "Who  are  heirs  of  a  deceased  person  are  determined 
and  declared  by  statute,  and  the  quantity  each  shall  take  as  heirs, 
is  also  fixed.  Observing  these  rules  of  construction,  it  would 
seem  the  residue  of  the  estate  of  the  testator  should  be  divided 
in  accordance  with  the  provision  of  the  statutes  of  'descent'  as 
in  case  of  intestacy."  In  the  case  of  Kirkpatrick  v.  Kirkpatrick, 
it  is  held  :^2  ' '  There  is  nothing  in  the  will  to  indicate  the  devise 
to  the  'heirs'  of  the  testator,  and  whether  it  was  to  be  taken 
other  than  as  such  an  heir  would  take  under  the  statute.  In 
such  state  of  the  case  the  devisees  take  per  stirpes." 

250.  Residuary  bequests  and  legatees.  It  often  occurs,  that 
a  testator  makes  special  bequests  to  some  of  his  heirs,  and  then 
bequeaths  equally  the  residue  of  his  estate  to  all  of  them.  Good 
reason  often  exists  for  such  a  disposition  of  an  estate.  Or  it 
may  be  the  intention  of  a  testator  to  make  more  ample  provi- 
sion for  one  than  the  other;  or  the  love  and  affection  which 
prompts  the  devise  may  be  stronger  in  one  case  than  another. 
Some  one  child  may  have  larger  advancements  than  the  others, 
which  often  makes  it  necessary  to  increase  to  the  one  to  equal 
an  advancement  to  the  other.  The  residuary  legatee  or  lega- 
tees take  that  which  is  left  after  all  other  legacies  and  debts 
have  been  satisfied,  and,  in  case  the  personal  assets  are  not 
sufficient  to  satisfy  the  personal  bequests,  it  will  be  presumed 
that  it  was  the  intention  of  the  testator,  where  in  the  residuary 
clause  of  the  will,  real  and  personal  estate  are  commingled, 
to  charge  them  on  the  real  estate  bequeathed  under  the  resid- 
uary clause.^2 

90—62  111.  417.  191   111.    296.     Also   2   Jarman   on 

91—112  111.  242.  Wills,  756,  and  cases  cited. 

92—197  111.  144.  See  also  the  93— Richards  v.  Miller,  62  111. 
following  case:     Auger  v.  Tatham,     417;  Dearlove  v.  Otis,  99  111.  App. 

99. 

12 


178  THE  LAW  OF  ESTATES. 

251.  To  whom  the  residuary  estate  shall  go.  This  is  al- 
ways a  matter  to  be  taken  from  the  will  or  the  language 
thereof,  and  the  construction  such  language  will  receive  by  the 
courts.^*  If  the  devise  of  the  residue  of  the  estate  is  to  dev- 
isees by  name,  they  take  the  residue  as  named. ^^  On  the  other 
hand,  if  the  devise  is  to  ''my  heirs  at  law"  such  heirs  are  de- 
termined by  the  statute  of  descent.^^  In  the  case  of  Hale  v. 
Hale,^'^  it  was  determined  the  following  clause  in  a  foreign 
will  passed  real  estate  in  Illinois,  viz.:  "As  to  the  residue  of 
all  my  estate,  both  real  and  personal,  not  herein  otherwise  dis- 
posed of."  The  record  shows  that  the  testator,  domiciled  in 
Massachusetts,  owned  a  large  estate  in  that  State,  and  lands 
in  New  York  and  Illinois.  The  will  in  question  had  been  con- 
strued by  the  Court  of  Appeals  of  New  York,  which  held  the 
22d  paragraph  thereof,  relating  to  the  residue,  so  far  as  it  ap- 
plied to  real  estate  in  that  State,  worked  an  unlawful  suppres- 
sion of  the  powers  of  alienation,  and  was,  for  that  reason,  void. 
And  it  was  also  held  by  that  court  that  such  clause  was  re- 
pugnant to  the  provisions  of  the  statute  of  that  State  prohibit- 
ing accumulations,  except  for  the  times  and  purposes  therein 
permitted.  The  point  being,  that  the  will  postponed  the  final 
division  of  the  estate  until  the  death  of  the  last  survivor  of 
the  life  annuitants.  The  Illinois  court  construing  the  same 
clause  of  the  will  in  question,  say:  Primarily,  the  words  "all  my 
estate,"  mean  all  the  estate  of  testator  wherever  situated;  and 
that  meaning  will  always  be  given  to  them,  unless  something  in 
the  context  will  show  a  more  restricted  construction  will  better 
comport  with  the  clear  intention  of  the  testator.  The  same 
words  in  the  will  that  are  held  to  constitute  a  devise  of  land 
in  New  York,  include  also  the  lands  in  Illinois.  Either  the 
lands  in  both  states  are  devised,  or  they  must  be  treated  as  in- 
testate property  in  both  states.  It  is  incredible  that  a  testator, 
say  the  Illinois  court,  making  a  will  that  by  its  terms,  when 

94— West  V.    Fitz,   109    111.    438;  96— Kelly  v.  Vigas,  112  111.  245. 

Kelly  V.  Vigas,  112  111.  245-246.  97—125  111.  408. 

95— Pitney  v.  Brown,  44  111.  363. 


CONSTRUCTION  OF  WILLS— CONTINUED.  179 

understood  in  their  primary  sense,  disposes  of  all  "his  estate, 
both  real  and  personal,"  omitted  therefrom  property  conceded 
to  be  of  the  value  of  over  $1,200,000.  Siieh  a  proposition  is  too 
improbable  to  be  adopted,  unless  the  testator  was  incapable  of 
comprehending  what  he  was  doing.  Plainly,  the  residuary  clause 
of  the  will  is  broad  euough  to  include  all  the  property  of  the  tes- 
tator, no  matter  where  situated,  and  there  is  nothing  in  either  of 
the  attendant  circumstances  or  in  any  other  clause  of  the  will, 
that  shows  any  intention  on  the  part  of  the  testator  to  omit  any 
property  in  Illinois,  or  elsewhere,  from  its  operation.  It  is  also 
held  by  the  latter  court,  that  a  will,  postponing  the  final  disposi- 
tion of  a  part  of  an  estate  until  after  the  death  of  certain  life  an- 
nuitants, which  ma.y  not  occur  for  forty  or  even  sixty  years, 
is  not  invalid,  as  contravening  any  rule  of  public  policy  ex- 
isting in  the  State  of  Illinois.  And  so  it  is  held,  a  lapsed  legacy 
goes  to  the  residuary  legatee,  if  one;  if  none,  to  the  next  of 
kin.98 

A  will  bequeathed  a  specific  legacy,  payable  as  soon  after 
the  testator's  death  as  practicable,  and  to  the  same  person  a 
further  sum  "to  be  paid  out  of  my  residuary  estate  upon  final 
distribution"  and  a  further  clause  by  which  the  testator  de- 
vises the  residuary  estate  in  trust  for  his  two  daughters  until 
they  become  of  age,  when  it  is  to  be  divided  between  them, 
subject  to  the  charge  in  favor  of  the  widow  and  the  bequest 
made  by  the  will.  Held:  In  such  ease  the  payment  of  the 
residuary  legacy  is  postponed  until  the  final  division  of  the 
estate  between  the  two  daughters.^^ 

252.  Abatement — Suits  to  collect.  Section  16,  chapter  3, 
entitled  "Administration  of  Estates,"  relating  to  administra- 
tors to  collect,  provides :  "Every  such  collector  may  commence 
suits  for  debts  due  to  the  decedent,  and  release  the  same  on 
payment  thereof;  and  no  such  suit  shall  abate  by  the  revoca- 
tion of  his  letters,  but  the  same  may  be  prosecuted  to  a  final 

98— Mills  V.  Newbury,  112  111.  99— McDevitt  v.  Hibben,  221  111. 
123.  234. 


180 


THE  LAW  OF  ESTATES. 


decision,  in  the  name  of  and  by  the  executor  or  administrator 
to  whom  letters  testamentary  or  of  administration  may  be 
granted.^ 

Administrators  de  honis  non  and  executors,  who  have  a  duty 
to  perform  in  connection  with  the  property  disposed  of  by  will, 
requiring  a  construction  of  the  will,  and  a  sale  of  the  property, 
may  file  a  bill,  on  which  the  court  may  construe  the  will.^  The 
rule  pertaining  to  abatement,  arises,  generally,  where  it  is 
necessary  to  construe  a  will  to  ascertain  whether  there  is  in 
the  language  of  the  will  a  general  legacy  or  a  specific  legacy, 
intended  by  the  testator.  In  Rexford  v.  Bacon,^  con- 
struing the  will  in  question,  the  court  adopted  this  rule: 
"Specific  legacies  do  not  abate  in  favor  of  general  legacies 
(referring  to  clause  7  of  the  will),  and  it  should  not  be  held 


1 — Starr  &  Curtis  Annotated 
Statutes  of  Illinois,  with  Jones 
and  Addington's  Supplements 
thereto;  Vol.  1,  p.  274;  Vol.  4,  p. 
31;  Kurd's  R.  S.  of  111.,  1905.  same 
section  and  chapter,  p.  107. 

2— Stoff  V.  McGinn,  178  111.  46; 
Parsons  v.  Miller,  189  111.  107.  In 
Stoff  V.  McGinn,  supra,  page  55,  it 
is  said:  But  if  L —  as  adminis- 
trator, had  a  duty  to  perform  in 
connection  with  the  property 
which  required  a  construction  of 
the  will  and  which  rendered  it 
necessary  that  a  sale  should  be 
made,  he  was  fully  authorized  to 
file  the  bill,  and  the  court  might 
properly  construe  the  will  on  his 
application  and  appoint  a  trustee 
to  sell  the  land.  (Wenner  v. 
Thornton,  98  111.  156;  Longworth 
V.  Riggs,  id.  258.)  Even  if  it  should 
be  held  that  he  was  not  entitled 
to  bring  the  suit,  it  would  not 
show  a  want  of  jurisdiction  or  ren- 
der the   decree   a   nullity,   but  it 


would  be  merely  erroneous  and 
must  be  corrected  in  a  direct  pro- 
ceeding. In  Parsons  v.  Miller, 
supra,  it  Is  held:  The  construc- 
tion of  wills  being  a  recognized 
head  of  equity  jurisdiction,  the 
power  of  equity  to  entertain  a  bill 
by  an  executor  to  construe  a  will 
must  be  questioned  in  the  trial 
court,  where  the  objection  to  jur- 
isdiction is  that  no  trust  was  in- 
volved. And  where  a  controversy 
has  arisen  between  executors  as 
to  how  the  proceeds  of  personal 
property  in  their  hands  shall  be 
distributed,  to  determine  which  a 
construction  of  the  will  is  neces- 
sary, it  is  proper  for  the  executor 
to  file  a  bill  for  the  construction 
of  the  will  in  order  to  protect  him- 
self in  the  execution  of  his  trust. 
See  Foster  v.  Adler,  84  111.  App. 
655;  Miller  v.  Kingsbury,  28  111. 
App.  532. 

3—195  111.  70;  18  Am.  &  Eng. 
Ency.  of  Law,  2d  ed.,  p.  714,  and 
cases  cited. 


CONSTRUCTION  OF  Yv'ILLS— CONTINUED.  181 

to  abate  in  the  same  proportion  as  such  general  legacies  given 
under  the  same  clause."  The  provision  in  the  will  construed  was: 
"All  moneys  and  property  which  I  may  have  heretofore  or  which 
I  may  hereafter  during  my  life  advance,  loan  or  give  to  my 
sister,  are  to  be  hers  absolutely."  The  language  used  being 
held  a  confirmation  of  all  ante  mortem  gifts  and  creates  a 
specific  legacy,  which  can  only  be  satisfied  by  the  delivery  of 
the  notes  and  mortgages  representing  such  loans;  and,  con- 
sequently, which  does  not  abate  proportionately  with  the  gen- 
eral bequests  given  by  the  same  clause  of  the  will.* 

253.  Presumption  of  death  if  party  not  heard  from  in 
seven  years.  The  presumption  of  life  ceases  at  the  end  of 
seven  years,  from  the  period  when  he  or  she  was  last  heard 
from.  The  general  rule  holds,  with  respect  to  persons  away 
from  their  usual  places  of  resort,  and  of  whom  no  account  can 
be  given.  At  what  particular  time  a  party  died,  is  of  no  im- 
portance to  a  person  claiming  a  right  which  becomes  estab- 
lished on  a  death,  but  it  may  be  very  important  to  one  resist- 
ing that  right,  and  so,  it  becomes  an  affirmative  fact,  which 
the  party  alleging  must  prove;  and  the  party  whose  interest 
it  is  to  show,  that  a  person  was  living  within  the  seven  years, 
is  at  liberty  to  show  it  by  such  facts  and  circumstances  as  will 
inspire  that  belief  in  the  mind  of  a  court  or  jury.  Where  a 
person  was  not  heard  of  from  the  21st  of  March,  1852,  to  the 
21st  of  March,  1859,  it  was  held,  that  the  presumption  of  law 
is,  that  he  was  dead  on  the  21st  of  March,  1859,  being  seven 
years  from  the  time  he  was  last  heard  of.^  The  question  often 
arises,  and  becomes  extremely  important  as  a  governing  fact, 
where  a  legacy  is  given  to  one,  and  the  heir,  a  residuary  legatee 
or  devisee,  questions  whether  he  was  not  dead  at  the  time  of  the 
testator's  decease;  it  often  means  the  passing  of  an  interest  and 
possibly  an  entire  estate,  in  a  manner  not  intended  by  the  testa- 
tor. Who  should  inherit,  may  make  it  necessary  to  fix  the  exact 
hour  and  day  of  death ;  for  it  is  held,  "if  the  legatee  died  before 

4— Rexford  v.  Bacon,  195  111.  70.         5— Whiting  v.  Niccll,  4G  111.  230. 


182  THE  LAW  OF  ESTATES. 

the  testator,  the  legacy,  unless  given  to  a  child  or  grandchild, 
would  lapse,  in  the  absence  of  a  special  provision  in  the  will  to 
meet  such  a  contingency  and  would  go  to  heirs,  residuary  legatee 
or  devisee."^  The  exact  date  of  death  or  the  legal  presumption 
of  death,  generally  becomes  important,  when  the  testator's  estate 
is  distributed,  and  then,  as  between  his  heirs  and  legatees.  At 
the  expiration  of  seven  years,  the  presumption  of  death  arises 
by  law,  so  that  the  absentee  is  to  be  treated  and  accounted  as 
dead,  just  as  the  common  law  regarded  him  or  her  living  until 
death  was  proved;  and,  as  a  matter  of  right  and  of  equity,  the 
relation  of  parties  affected  by  his  or  her  life  or  death  are  to  be 
determined  by  these  technical  presumptions.'^ 

Lawson  in  his  work  on  Presumptive  Evidence,  in  stating 
what  circumstances,  if  proved,  will  overcome  the  presumption 
of  the  continuance  of  life  lay  down  the  following  rule:  "That 
within  that  time  he  was  in  a  desperate  state  of  health."  {Rule 
49.)  "That  his  habits,  character,  domestic  relations  or  neces- 
sities would  have  made  it  certain  that  if  alive  within  that 
period  he  would  have  returned  to  or  communicated  with  his 
residence,  home  or  domicile."  {Rule  52.)  So  it  is  held,  the 
age,  habits  of  life,  habits  as  to  the  use  of  stimulants  or  drugs, 
and,  indeed,  any  condition  from  which  a  presumption  as  to  the 
continuance  or  destruction  of  life  would  arise,  are  proper  to 
be  considered.  So  also,  where  one  has  lived  an  upright  life 
and  enjoyed  the  confidence  of  his  acquaintances,  is  successful 
in  business,  attached  to  his  family,  contented,  and  fond  of  the 
associations  of  home,  it  is  to  be  fairly  presumed  that  if  alive 
he  would  speedily  return,  or  at  least  communicate  with  the 
objects  of  his  affection.  On  the  other  hand,  if  his  relations 
with  liis  family  were  strained,  if  he  was  in  straitened  circum- 
stances, unhappy,  and  discontented  with  his  surroundings  and 

6— Whiting  v.  Nicoll,  46  111.  230.  Clark  v.  Canfield,  15  N.  J.  Eq.  119; 

7 — Johnson  v.  Johnson,  114  111.  Burr  v.  Lyon,  14  Wart.  150;   Han- 

611;    Reedy    v.    Millizen,    155    111.  cock  v.  Am.  Life  Ins.  Co.,  62  Mo. 

636;  see  also  Lawson  on  Presump-  2G;  Dean  v.  Bittenger,  62  Mo.  101; 

live    Evidence,    rule    43,    p.    202;  Whitehead's  Appeal,  23  Pa.  St.  114. 


CONSTRUCTION  OF  WILLS— CONTINUED.  183 

associations,   the   likelihood   of  his   return   or   communication 
would  naturally  be  much  lessened.^ 

254.  In  Heintz  v.  Ahlgren,  it  is  held:^  In  order 
to  enforce  the  presumption  of  the  death  of  a  person  after  an 
absence  of  seven  years,  there  must  be  evidence  of  diligent 
inquiry  at  the  person's  last  place  of  residence,  and  among  his 
relatives,  and  any  others  who  probably  would  have  heard  from 
him,  if  living.  Long  absence  alone,  no  matter  how  long  con- 
tinued, is  not  sufficient  to  raise  the  presumption  of  death.  There 
must  be  shown  an  absence  of  seven  years  or  more  from  the 
established  residence  of  the  party,  before  the  presumption  of 
death  can  be  raised. 

8 — Reedy    v.    Mulligan,    155    111.  large,  ante  69  ) .    Where  a  lapse  is 

636;     Webster    v.    Blrchmore,    13  found  to  exist,   under  the  statute 

Ves.  362;   In  re  Hall,  1  Will.  85;  the  estate  goes  to  heirc.  Summers 

Tisdale  v.  Conn.  Mut.  Ins.  Co.,  26  v.  Highley,  191  111.  193.    The  courts 

Iowa,   170.  of   Illinois  will   vest  an  estate  of 

9 — 170  111.  60.  any  character  where  it  can  legally 

'Note. — Lapsed  Legacies:  The  llth.  do  so.     Dorsey  v.  Dodson,  104  111. 

section  of  the  statute  of  descent,  App.  589.    See  also  Rood  on  Wilis, 

was  intended  to  prevent  the    laps-  sees.  668  to  679,  chapter  20,  entitled 

ing    of    legacies     (see    statute    at  "Lapses  and  Substitutions." 


CHAPTER   XI 


CONTEST  OF  WILLS  IN  CHANCERY 


Sec. 

255.  The  statute  confers  chancery 

jurisdiction. 

256.  Jurisdiction     is     very     broad 

in  such  contest. 

257.  The  issue  of  fact  for  jury. 

258.  When      judgment      admitting 

will  to  probate  is  not  void 
for  want  of  jurisdiction. 

259.  Interested    persons    only    can 

bring  suit, 

260.  Stoors  v.  St.  Luke's  Hospital. 

261.  A  jury  may  be  waived. 

262.  Where   evidence   is   not   suflB- 

cient  to  support  verdict  for 
plaintiff. 

263.  The    court    applies    and    con- 

strues the  law,  the  jury  the 
facts. 

264.  The   party   affirming   the   va- 

lidity of  the  will  has  the 
right  to  open  and  close  the 
case. 

265.  Who    are    and    who    are    not 

competent  witnesses. 

266.  What  constitutes  a  prima  fa- 

cie case. 

267.  The  contents  of  a  lost  or  des- 

troyed will  may  be  proved 
by  a  single  witness. 


Sec. 

268.  Secondary  evidence. 

269.  Expert  witnesses. 

270.  Upon     a     supposed     state    of 

facts  only  an  expert  can  tes- 
tify. 

271.  Statements    and    declarations 

before     and     after     making 
will. 

272.  Testamentary   capacity. 

273.  Brice  v.  Hall. 

274.  Sound  mind  and  memory. 

275.  What  is  the  effect  of  old  age 

upon  testamentary  capacity. 

276.  Fraud  and  compulsion  or  im- 

proper conduct. 

277.  Undue  influence  and  improp- 

er conduct. 

278.  General  influence  such  as  ad- 

vice,   argument    or    persua- 
sion. 

279.  Trial  by  jury  how  far  conclu- 

sive. 

280.  The  costs  in  such  cases. 

281.  Executors    generally   not    lia- 

ble individually,  but  may  be 
in  certain  contingencies. 

282.  Solicitor's  fees  allowed  in  cer- 

tain contingencies. 


Sec.  255.  The  statute  of  Illinois  confers  chancery  jurisdic- 
tion. The  jurisdictior.  of  courts  of  chancery  in  Illinois,  to  en- 
tertain bills  to  set  aside  the  probate  of  wills,  is  derived  exclu- 
sively from  the  statute ;  and  the  jurisdiction  of  such  court  can 
only  be  exercised  in  the  mode  and  under  limitation  prescribed 

184 


CONTEST  OF  WILLS  IN  CHANCERY.         185 

by  the  statute.^ *^  A  bill  in  chancery  to  set  aside  a  will  or 
its  probate  can  not  be  entertained  under  the  general  equity 
powers  vesting  in  courts  of  chancery  independently  of  the 
statute  which  confers  the  jurisdiction.^^  The  jurisdiction  is  de- 
termined by  the  statute  law  of  the  State  providing  for  the  con- 
test of  wills  in  chancery  in  force  when  such  bill  is  filed ;  and  this 
is  true,  even  though  the  statute  law  for  such  purpose  may  not  be 
the  same  as  when  the  will  was  probated.  The  jurisdiction  of 
chancery  can  be  exercised  only  in  the  manner  and  under  the  lim- 
itations prescribed  by  statute;  and  the  time  within  which  such 
a  bill  may  be  filed  by  any  person  interested  is  fixed  by  the  statute 
granting  the  remedy.^  ^  In  construing  statutes,  the  courts  make 
a  radical  distinction  between  a  statute  law  which  gives  a  remedy 
and  fixes  a  time  within  which  it  may  be  exercised,  and  a  statute 
of  limitation  which  fixes  a  time  within  which  a  common  law 
remedy  may  be  resorted  to.^^  Before  the  bar  of  the  statute  has 
fallen,  the  state  may  establish,  alter,  lengthen  or  shorten  the 
period  of  limitation.!^  In  the  case  of  Ryhiner  v.  Frank,  it  is 
held  ^  ^  That  where  a  statute  of  limitation  limiting  the  time  with- 
in which  an  act  may  be  done,  is  modified  by  changing  the  time, 
if  such  change  still  gives  a  reasonable  time  for  the  perform- 
ance of  the  act,  taking  away  no  vested  right,  it  is  a  valid  law. 
The  statute  as  amended  in  1903,  and  in  force  July  Ij  of  the 
same  year  is  as  follows:  "When  any  will,  testament,  or  cod- 
icil shall  be  exhibited  in  the  County  Court  for  probate  thereof 
as  aforesaid,  it  shall  be  the  duty  of  the  court  to  receive  the 

10— Luther    v.    Luther,    122    111.  338;    O'Brien  v.  Bonfield,  220   111. 

565,  and  cases  cited  by  the  court.  219. 

Jele  V.  Lemberger,   163  111.  338.  13 — "The    Harrisburgh,"    119    U. 

11— Gaines  v.  Feunter,  92  U.  S.  S.  199;  Spalding  v.  White,  173  111. 

10;  Luther  v.  Luther,  122  111.  565,  127. 

and    cases    cited    in    the   opinion;  14 — Terry  v.  Anderson,  95  U.  S. 

Jele  V,  Lemberger,  163  111.  338.  628;    Ryhiner    v.    Frank,    105    IlL 

12 — Luther    v.    Luther,    122    111.  326;  Am.  &  Eng.  Ency.  of  Law,  R. 

565;   Wheeler  v.  Wheeler,  134  111.  ed.,   609,   under   head   of   "Limita- 

522;    Spalding   v.   White,    173    111.  tions"  and  cases  cited. 

127;    Jele  v.   Lemberger,   163    111.  15—105    111.    326;     Spalding    v. 

White,  173  111.  127. 


186  THE  LAW  OF  ESTATES. 

probate  of  the  same  without  delay  and  to  grant  letters  testa- 
mentary thereon  to  the  person  or  persons  entitled,  and  to  do 
all  other  needful  acts  to  enable  the  parties  concerned  to  make 
settlement  of  the  estate  at  as  early  a  day  as  shall  be  consist- 
ent with  the  right  of  the  respective  persons  interested  therein : 
Provided,  however,  that  if  any  person  interested  shall,  within 
one  (1)  year  after  the  probate  of  any  such  will,  testament  or 
codicil  in  the  County  Court  as  aforesaid,  appear  and  by  his 
or  her  bill  in  chancery  contest  the  validity  of  the  same,  an 
issue  at  law  shall  be  made  up  whether  the  writing  produced 
be  the  will  of  the  testator  or  testatrix  or  not,  which  shall  be 
tried  by  a  jury  in  the  Circuit  Court  of  the  county  wherein 
such  will,  testament  or  codicil  shall  have  been  proven  and 
recorded  as  aforesaid,  according  to  the  practice  of  chancery 
in  similar  cases ;  but  if  no  such  person  shall  appear  within  the 
time  aforesaid,  the  probate  shall  be  forever  binding  and  con- 
clusive on  all  the  parties  concerned,  saving  to  infants  or  non 
compos  mentis  the  like  period  after  the  removal  of  their  re- 
spective disabilities.  And  in  all  such  trials  by  a  jury  as  afore- 
said the  certificate  of  the  oath  of  the  witnesses  at  the  time  of 
the  first  probate,  shall  be  admitted  as  evidence  and  to  have 
such  weight  as  the  jury  shall  think  it  may  deserve.  "^^ 

256.  Jurisdiction  is  very  broad  in  such  contest.  The  juris- 
diction in  equity  of  a  bill  to  contest  a  will,  extends  to  an  in- 
vestigation of  any  and  every  ground  on  which  the  validity  of 
the  will  may  be  attacked ;  but  the  bill  must  be  consistent  in  its 
averments,  for  the  complainant  cannot  state  one  case  in  the 

16 — Starr    &    Curtis    Annotated  cases  cited;    Vol.   5,  pp.   576,   577, 

Statutes    of    Illinois,    with    Jones  sets  forth  statute  passed  in  1903, 

and       Addington's       Supplements  and  gives  cases  applicable  to  text 

thereto,  Vol.   3,  pp.   4036  to  4039,  on  pages  noted  and  on  page  57S. 

"With   cases   giving  history  of  the  Kurd's  R.  S.  of  111.  1905,  Sec.  7, 

common  law  right  to  contest  will  Chapter  148  "Wills,"  pp.  2051,  2052. 

as  extended  in  the  early  statutes  See  also  the  following  cases,  Davis 

of    Virginia,    Kentucky,    and    Illi-  v.  Upson,  209   111.   206;      Sharp  v. 

nois.     Vol.  4,  pp.  1286  to  1289.  and  Sharp,   213   111.    332;    Davidson   v. 

Redden,  214  111.  61. 


CONTEST   OF  WILLS   L\   CHANCERY.  187 

bill  and  prove  another.-"  The  contest  must  be  tried  upon  the 
issue  made  in  the  pleadings.^i 

257.  The  issue  of  facts  for  jury.  The  statute  quoted  in 
section  255  of  this  work  is  similar  to  the  statute  of  the  state 
in  1845,  the  material  difference  being,  that  under  the  statute 
of  1845,  five  (5)  years  was  allowed,  after  probate  of  will, 
within  which  an  interested  party  could  file  a  bill  to  contest. -- 
The  leading  case,  Riggs  v.  Wilto }),-■'•  was  decided  in  1851,  Chief 
Justice  Treat  delivering'  the  opinion.  The  excellent  exposition 
of  the  law  as  laid  dov,]i  in  that  opinion,  often  cited  in  late  de- 
cisions touching  the  same  subject  matter,  we  think  warrants  a 
liberal  reference  thereto.  It  is  said  in  that  case,  this  is  a  feigned 
issue  out  of  chancery  to  determine  the  question  whether  a  certain 

paper  was  the  last  will  and  testament  of  C R .     The 

plaintiff'  alleges  that  it  was  not  his  last  will  and  testament ;  the 
defendant  affirms  that  it  was.  On  the  trial,  the  defendants  were 
allowed  to  open  and  conclude  the  case ;  and  both  of  the  subscrib- 
ing witnesses  to  the  will  were  introduced,  and  testimony  was  of- 
fered tending  to  show  that  R was  of  unsound  mind  and  mem- 
ory at  the  time  of  the  execution  of  his  will.  The  issue  was  submit- 
ted to  the  jury  as  a  new  and  original  question,  to  be  determined 
exclusively  upon  the  evidence  introduced  before  them.  The 
trial  is  de  novo  and  without  regard  to  the  fact  that  the  instru- 
ment was  admitted  to  probate.  The  certificate  of  the  oaths  of 
witnesses  at  the  time  of  the  probate  may  be  offered  in  evidence 
by  either  party;  but  it  is  to  receive  such  weight  only  as  the 
jurj^  may  think  it  deserves  in  connection  with  the  other  proof 
in  the  case.  We  are  satisfied  that  rule  of  construction  is  sound 
and  reasonable,  and  well  calculated  to  carry  out  the  real  inten- 
tion of  the  legislature.    In  practice  it  will  best  protect  the  ends 

20 — Swearington  v.  Inman,  198  67;  Ingraham  v.  Ingraham,  169  111. 
111.  257;  Carmichael  v.  Reed,  45  461;  Smith  v.  Henline,  174  111.  199. 
111.  108;  Purdy  v.  Hall,  134  111.  22— Riggs  v.  Wilton,  13  111.  17; 
298.  Yoe  v.  McCord,  74  111.  33;  Ruther- 

21— Wallace  v.  Whitman,  201  111.     ford  v.  Morris,  77  111.  397. 

23—13  111.   17. 


188  THE  LAW  OF  ESTATES. 

of  justice,  and  protect  the  rights  of  parties.  The  jury  are  to 
hear  the  proofs  submitted  by  the  parties,  and  decide  the  issue 
as  they  would  any  other  question  of  fact,  according  to  the 
weight  of  the  evidence.  In  such  case  the  parties  are  brought 
before  the  court  for  the  express  purpose  of  having  all  ques- 
tions respecting  the  validity  of  the  will  forever  put  at  rest. 
It  was  clearly  the  design  of  the  legislature  that  an  issue  under 
the  statute  should  be  determined,  like  every  other  issue  out 
of  chancery,  upon  the  weight  and  preponderance  of  the  testi- 
mony adduced  by  the  parties.  This  may  be  gathered  from  the 
expression  in  the  statute,  "that  the  issue  shall  be  tried  by  a 
jury,  according  to  the  practice  of  courts  of  chancery  in  sim- 
ilar eases."  And  it  is  further  evidenced  by  the  provisions  of 
an  Act  of  the  25th  of  Februarj^  1845.-*  This  act  declares,  that 
when  probate  of  a  will  shall  be  refused  and  an  appeal  shall  be 
prosecuted,  the  party  seeking  probate  may  support  the  will  by 
any  evidence  that  would  be  competent  on  the  trial  of  an  issue  out 
of  chancery,  for  the  purpose  of  contesting  the  validity  there- 
of. "25 

258.  When  judgment  admitting  will  to  probate  is  not  void 
for  want  of  jurisdiction.  Section  14  of  the  act  concerning 
wills,  provides:  Appeals  may  be  taken  from  the  order  of  the 
county  court,  allowing  or  disallowing  any  will  to  probate,  by  any 
pereon  interested  in  such  will,  in  the  same  manner  as  appeals 
are  taken  from  justices  of  the  peace,  except  that  the  appeal  bond 

24— See  Section  13,  Chapter  148,  111.    425;    Singloff  v.   Bruner,   174 

"Wills";  Kurd's  R.  S.  of  111.,  1905;  111.  561;    Entwistle  v.  Merkle,  180 

p.   2053;    this   is  the  law   in  that  111.  24;  Petefish  v.  Becker,  176  111. 

regard   passed    by   the   legislature  448;  Nieman  v.  Schnitker,  181  111. 

in  1845,  but  now  appearing  under  400;   Shaw  v.  Camp,  163  111.  148; 

the  act  relating  to  wills.  Claussenius  v.  Claussenius,  179  111. 

25 — See  the  following  cases,  af-  545;    Smith  v.    Henline,    174    111. 

firming   the   principles   laid   down  184;  Stoors  v.  St.  Luke's  Hospital, 

in   the   case   of   Riggs  v.   Walton,  180   111.    368;    Swearington   v.    In- 

SKpra    (23);    Johnson  v.'  Johnson,  man,  198  111.  255;  Baker  v.  Baker, 

187  111.  93;  Bardell  v.  Brady,  172  202   111.  595;   O'Brien  v.  Bonfield, 

220  111.  219. 


CONTEST  OF  WILLS  IN  CHANCERY.  189 

and  security  may  be  approved  by  the  clerk  of  the  county  court ; 
and  the  trials  of  such  appeals  shall  be  de  novo?^  And  it  is  held 
that  if  the  party  appealing  from  the  court's  refusal  to  admit  a 
will  to  probate  is  not  named  in  the  will  as  legatee  or  devisee, 
and  is  not  an  heir  of  the  testator  or  testatrix,  yet  if  the  appeal 
bond  recites  that  the  appellant  is  "  a  legatee  named  in  the  will, ' ' 
the  circuit  court  has  jurisdiction  to  hear  the  appeal,  and  its 
judgment  admitting  the  will  to  probate  is  res  judicata,  upon  the 
question  of  the  appellant's  interest,  in  a  collateral  proceeding, 
as  collateral  attacks  cannot  prevail  unless  the  judgment  is  void.-^ 
But  it  is  held,  within  the  meaning  of  the  statute  quoted,  the 
party  taking  the  appeal,  must  be  one  having  a  vested  as  distin- 
guished from  a  contingent  interest.^s  And  the  appeal  must  be 
taken  within  the  time  prescribed  by  the  statute  in  question.^^ 

259.  Interested  persons  only  can  bring  bill.  In  constru- 
ing section  7  of  the  statute  of  wills,  it  has  been  held,  the  words, 
"any  person  interested,"  as  used  in  the  proviso  to  said  section, 
means  those  persons  who  are  interested  in  the  settlement  of  the 
estate,  that  is  to  say,  those  who  will  be  directly  affected  by  its 
settlement;  that  the  interest  must  be  a  direct  pecuniary  interest 
affected  by  the  probate  of  the  will,  as  the  reference  to  an  exist- 
ing interest,  and  not  to  an  interest  which  may  be  subsequently 
acquired.  A  person,  not  directly  and  pecuniarily  interested  in 
the  estate  of  a  deceased  person  at  the  time  of  the  probate  of  the 
will  of  such  decedent,  is  not  entitled  to  file  a  bill  in  chancery 
for  the  purpose  of  contesting  the  will.^*^    In  McDonald  v.  White, 

26 — See     sections     13     and     14,  27 — White    Memorial    Home    v. 

Chapter  148,  "Wills."  Starr  &  Cur-  Price,  195  111.  279. 

tis  Annotated  Statutes  of  Illinois,  28 — People    v.    McCormick,    201 

with  Jones  &  Addington's  Supple-  111.  313;    Same  v.  Same,    104    111. 

ments   thereto.    Vol.     3,    pp.    4042,  App.  650 

4043;   Vol.  4,  pp.  1289,   1290;    Vol.  29— Wright  v.  Simpson,  200  111. 

5,  pp.  578,  579,  and  cases  cited  in  61, 

each    volume    under    sections    of  30 — McDonald  v.  White,  130  111. 

statute  noted.     Hurd's  R.  S.  of  III.  493;    Jele   v.   Lemberger,    163    111. 

1905,   same  sections   and   chapter,  338;    Stoors  v.    St.    Luke's    Hospi- 

p.  2053.  tal,  180  111.  373.    In  the  latter  case. 


190  THE  LAW  OF  ESTATES. 

it  is  said:^^  Appellants  were  not  interested  in  the  probate  of 
this  will.  They  were  deprived  of  nothing  by  it.  Their  interest 
was  derived  by  purchase  long  subsequent  to  the  probate  of  the 
will,  and  is,  therefore,  not  such  as  is  within  the  contemplation 
of  the  statute.  ]\Ioreover,  James  M.  McDonald  never  had  posses- 
sion of  this  property.  He  never  had  any  apparent  title  to  it.  At 
most,  all  that  he  had  Avas  the  bare  right  to  establish  title  by  suc- 
cessfully contesting  this  will.  But  such  a  right  is  not  assignable, 
and  cannot  therefore,  be  the  subject  of  a  conveyance.'^^ 

260.  In  Stoors  v.  St.  Luke's  Hospital,  the  court  said:^^ 
The  right  to  file  the  bill,  which  existed  in  George  M.  Stoors, 
did  not  descend  to  the  appellant,  Emory  A.  Stoors.  George 
M.  Stoors  had  the  bare  right  to  establish  title  by  successfully 
contesting  the  will.  That  right  was  not  assignable,  as  we  held 
in  McDonald  v.  Wliite?'^  If  it  was  not  assignable  by  a  convey- 
ance or  written  transfer,  it  could  not  pass  by  inheritance  or  de- 
scent. The  right  to  dispose  of  property  by  will  is  always  con- 
sidered purely  a  creature  of  statute.^  *^    No  statute  exists  in  this 

it  is  held,  the  law  in  force  when  Wis.   183;    Gardner  v.   Adams,   12 

bill  to  contest  a  will  is  filed  con-  Wend.  297;  Marshall  v.  Means,  12 

trols  the  jurisdiction,  and  not  the  Ga.  61;  Daj'ton  v.  Fargo,  45  Mich, 

law  in  force  when  the  will  is  pro-  153;  Brush  v.  Sweet,  38  Mich.  574. 

bated.    Courts  of  equity  take  juris-  The  cases  cited  hold,  that  the  as- 

diction  solely  from  the  statute  in  signment  of  a  bare  right  to  fill  a 

such  matter,  and  independently  of  bill    in    equity    for    a    fraud    com- 

the  statute  which  grant  such  court  mitted    on    the    assignor,    will    be 

jurisdiction,  cannot  exercise  with-  held  A'oid  as  being  against  public 

in     itself     jurisdiction     under     a  policy    and    savoring    of    mainte- 

bill   to   contest   a   will;    the   mode  nance,  this  doctrine  being  applied 

and   the   limitation   prescribed    by  to  the  facts  in  the  case  of  Norton 

the  statute  solely  give  such  courts  v.  Tuttle,  supra,  and  later  Stoors 

power  to  act.  v.  St.  Luke's  Hospital,  stipra  (30), 

31—130  111.  493.  in  a  bill  to  contest  will. 

32— Norton  V.  Tuttle,  60  HI.  130;  33— Stoors  v.   St.   Luke's   Hospl- 

Illinois    Land    and    Loan    Co.    v.  tal,  180  111.  373. 

Speyer,    138    111.    137.      See   also   2  34— McDonald  v.  White,  130  111. 

Story's  Eg.   Jur.,  sec.   1040   h;      3  493. 

Pomeroy's   Eq.   Jur.,   sec.   1276;    1  3.5 — United    States    v.    Perkins, 

Am.  &  Eng.  Ency.  of  Law,  p.  833;  163    U.    S.    625;    Kochersperger   v. 

M.  &  M.  R.  R.  V.  M.  &  M.  R.  R.,  20  Drake,  167  111.  122. 


CONTEST  OF  WILLS  IN  CHANCERY.         191 

State,  so  far  as  we  are  advised,  which  authorizes  the  right  to  file 
such  a  bill  to  pass  by  descent,  or  to  go  to  an  heir  by  inheritance. 
The  right  of  a  widow  to  dower  do€S  not  survive  to  the  administra- 
tor.2^  An  action  to  recover  a  statutory  penalty  does  not  sur- 
vive the  death  of  the  defendant.^'* 

261.  A  jury  may  be  waived.  In  Whipple  v.  Eddy,  it  is 
said:^^  It  is  next  contended  that  the  Circuit  Court  was  without 
jurisdiction  to  try  the  issues  formed,  without  a  jury.  To  the 
reply  that  a  jury  was  expressly  waived  by  agreement  of  the 
parties,  it  is  said  jurisdiction  cannot  be  given  by  consent.  This 
is  a  misapplication  of  the  rule  invoked.  Section  7  of  the  statute 
of  ''Wills"  confers  jurisdiction  upon  courts  of  chancery  to  hear 
bills  to  contest  wills.  It  was  said  in  Wolf  v.  Bollinger,^^  that 
the  statute  gave  a  court  of  chancery  authority  to  adjudge  upon 
the  validity  of  any  part  of  an  instrument  as  well  as  the  whole, 
and  when  there  was  no  dispute  of  fact,  and  parties  proceeded 
to  trial  without  objection  and  without  asking  that  an  issue  at 
law  be  made  up  and  tried  by  a  jury,  that  was  a  waiver  of  the 
making  up  and  trial  by  the  jury  of  such  issue.  The  provisions 
as  to  how  the  trial  shall  be  had  in  no  way  affects  the  juris- 
diction of  the  court.  The  question  raised  is  more  properly 
whether  a  jury  may  be  waived  by  the  parties  when  "an  issue 
of  law  is  made  up,  as  to  whether  the  writing  produced 
be  the  will  of  the  testator  or  testatrix."  It  is  true,  the 
language  of  the  statute  is,  ''which  shall  be  tried  by  a  jury," 
etc.;  but  the  word  "shall,"  as  here  used,  has  no  other  or 
greater  force  than  the  word  "may."  If  a  jury  can  be  waived 
in  such  a  case,  it  was  clearly  done  here  by  stipulation  in  writ- 
ing entered  of  record.  Counsel  has  cited  decisions  from  the 
Supreme  Court  of  Kentucky,  Virginia  and  other  states  upon 
statutes  of  which  ours  is  a  substantial  copy,  and  it  is  insisted 
that  they  decide  that  the  trial  must  be  by  jury.     These  deci- 

36— Hitt  V.  Scammon,  82  III.  519.         38—161  111.  114. 
37— Diversey   v.'  Smith,   103   111.         39—62  111.  368. 
378. 


192  THE  LAW  OF  ESTATES. 

sions  go  no  further  than  our  own,  so  far  as  we  can  discover. 
All  agree  that  the  statute  contemplates  a  trial  by  jury,  and  that 
the  court  could  not  dispense  with  the  jury  without  the  consent 
of  all  parties  interested ;  but  we  do  not  understand  any  of  the 
cases  cited  as  holding  that  a  jury  may  not  be  waived  as  in  any 
other  civil  case,  and  we  think  the  result  of  our  decisions  is 
that  it  can.  The  verdict  of  a  jury  in  the  contest  of  a  will 
has  the  same  effect,  and  the  power  of  a  court  to  set  it  aside 
and  grant  a  new  trial  is  the  same,  as  in  actions  of  law."**^  The 
court  having  the  ultimate  right  to  determine  whether  the  issue 
has  been  decided  in  accordance  with  the  evidence,  no  good  rea- 
son can  be  shown  why  the  parties  may  not,  with  the  consent  of 
the  court,  submit  such  issue  to  it  in  the  first  place,  if  they  see 
proper  to  do  so.  Of  course,  the  verdict  of  the  jury  is  only  to  be 
set  aside  when  it  is  manifestly  against  the  weight  of  the  evidence, 
but  the  court  alone  has  the  power  to  say  when  it  is  so. 

The  law  will  not  allow  appellant  to  complain  that  it  was  error 
to  permit  him  to  waive  his  rights.*^  When  a  party  suffers  the 
case  to  be  tried  by  the  court  until  the  issues  are  found  against 
him,  he  waives  any  right  he  may  have  had  to  a  jury  trial.^^ 

262.  Where  evidence  is  not  suflBcient  to  support  a  verdict 
for  plaintiff.  In  Thompson  v.  Bennett,  the  court  said:'*^  It  is 
true,  that  the  statute  requires  the  issue  as  to  the  validity  of  a 
will  to  be  tried  by  a  jury.     Hence,  if  the  court  takes  a  case,  in- 

40— Meeker    v.    Meeker,    75    111.  Hock,  118  111.  587.    It  is  held,  that 

260;   Calvert  v.  Carpenter,  96  111.  where  the  court  had  jurisdiction 

63;    Shevalier  v.   Seager,   121   111.  of  the  person  and  of  the  subject 

564.  matter,    and    the    judgment    was 

41 — Heacock  v.  Hosmer,  109  111.  valid,   any   error    or    irregularity 

245;    Burgwin  v.   Babcock,   11   111.  with  the  trial  of  the  case  without 

28;   Phillips  v.  Hood,  85  111.  450;  a  jury  and  where  nothing  appears 

Heinrichsen  v.  Mudd,  33  111.  476;  in  the  record  to  show  a  jury  was 

Proffatt  on  Jury  Trials,  sec.  110.  waived   or  not  waived,  it  will  be 

42 — Ellithorpe  v.  Buck,  17  Ohio  presumed   a  jury  was  waived  by 

St.  72;  Proffatt  on  Jury  Trials,  sec.  the  parties. 
112.    In  the  case  of  Railway  Co.  v.         43—194  111,  61. 


CONTEST  OF  WILLS  IN  CHANCERY.         193 

volving  such  an  issue,  from  the  jury  and  directs  a  verdict  against 
the  contestants,  the  same  rule  must  be  applied  that  obtains  in 
respect  to  trials  in  suits  at  law.'*^  In  Purdy  v.  Hall,  where  a 
bill  was  filed  to  set  aside  the  probate  of  a  willj  it  is  held :  ' '  The 
rule  in  actions  at  law  is,  that  when  the  evidence  given  at  the 
trial,  with  all  the  inferences  that  could  justly  be  drawn  from  it, 
is  so  insufficient  to  support  a  verdict  for  the  plaintiff,  that  such 
a  verdict,  if  returned,  must  be  set  aside,  the  court  is  not  bound 
to  submit  the  case  to  the  jury,  but  may  direct  a  verdict  for  the 
defendant. ' ' 

263.  The  court  applies  and  construes  the  law,  the  jury 
the  facts.  The  question  whether  the  will  has  been  executed 
with  all  the  proper  formalities,  is  a  question  of  law,  and  not 
a  question  of  fact  to  be  considered  by  the  jury.-*^  It  is  not  in 
the  province  of  the  jury  to  determine  whether  the  will  is  a  just, 
wise  and  proper  disposition  of  the  testator's  property. ^^  In 
Freeman  v.  Easly,'^'^  the  evidence  established  at  least  a  partial 
unsound  condition  of  the  mind,  and  it  was  held  the  jury  should 
not  for  that  reason  alone,  be  told,  as  a  matter  of  law,  that  would 
incapacitate  him  to  make  a  valid  will.  That  would  be  to  state 
the  rule  of  law  on  this  subject  broader  than  the  authorities  in 
this  or  other  States  will  warrant.  It  accords  with  common  ob- 
servation that  in  contests  concerning  wills,  where  the  testator  has 
made,  or  has  seemingly  made,  an  unequal  or  inequitable  disposi- 
tion of  his  property  among  those  occupying  the  same  relation  to 
him,  by  consanguinity  or  otherwise,  there  is  a  disposition  in  most 
minds  to  seek  for  a  cause  for  holding  the  will  invalid.  The  incli- 
nation in  this  direction  that  is  found  to  exist  in  the  minds  of 
most,  if  not  all,  jurors,  cannot  always  be  controlled  by  instruct- 
ing them ;  there  is  no  law  requiring  a  testator,  nor  is  he  bound, 
to  devise  his  property  equitably  or  in  equal  portions  among  his 

44—134  III.  298.  46— Carpenter  v.  Calvert,  83  111. 

45— Roe  V.   Taylor,  45  111.   485;  62;    Neiman  v.   Schmltka,  181  111. 

Graybeal  v.  Gardner,  146  111.  343;  407;      Freeman   v.   Easly,   117   111. 

Harp  V.  Parr,   168   111.   459;    John-  317. 

son  V.  Johnson,  187  111.  93.  47—117  111.  314. 
13 


194  THE  LAW  OF  ESTATES. 

heirs.  Of  course,  the  law  is  he  may  make  such  disposition  of 
his  property  as  he  sees  fit,  and  he  may  bestow  his  bounty  where 
he  wishes,  either  upon  his  heirs  or  others.  While  this  is  un- 
doubtedly the  law,  the  common  mind  is  disinclined  to  recog- 
nize itj  and  jurors  will  too  frequently  seize  upon  any  pretext 
for  finding  a  verdict  in  accordance  with  what  they  regard  as 
natural  justice. 

264,  The  party  afl&rming  validity  of  the  will  has  the  right 
to  open  and  close  the  case.  The  rule  in  this  State  is, 
that  the  burden  of  proof  is  on  the  party  affirming  the  execu- 
tion and  validity  of  the  will,  and  consequently  such  party  has 
the  right  to  open  and  close  the  case.^  But  where  two  wills  are  of- 
fered and  the  subject  of  contention  arises,  it  has  been  held, 
each  party  affirms  the  execution  and  validity  of  the  will;  and 
therefore  it  was  in  the  discretion  of  the  court,  to  determine 
which  should  have  the  right  to  open  and  conclude  the  case.^ 

265.  Who  are  and  who  are  not  competent  witnesses. 
Sections  1  and  2  of  the  act  relating  to  evidence  and  deposi- 
tions, Chapter  51,  of  the  Statute  of  Illinois,"  provides: 
"No  party  to  a  civil  action,  or  person  directly  interested  in 

1— Bevelot  v.  Lestrade,   153   111.  Young  v.  Bank  of  Cairo,  51  111.  73 

625;    Moyer  v.    Swyggart,   125   111.  Stampoliski  v.  Steefens,  79  111.  303 

262;  Tate  v.  Tate,  89  111.  42;  Riggs  McFarland  v.  People,  72  111.  368 

V.  Wilton,  13  111.  15.  McCoy  v.  People,  71  111.  Ill;  Rob- 

2— Bardel    v.    Bradley,    172    111.  erts   v.    Pierce,   79    111.    381.     And 

425.  the  following  cases  where  the  stat- 

3 — Post  650;  Kurd's  R.  S.  of  111.  ute,  section  2,  chapter  51,  Evidence 
1905,  pp.  1034,  1035;  and  see  the  and  Depositions  was  applied: 
following  cases,  where  this  statute  Straubher  v.  Mohler,  80  111.  21; 
was  applied  (sec.  1,  Evidence  &  Crane  v.  Crane,  81  111.  166;  Lang- 
Depositions) :  Remann  v.  Buck-  ley  v.  Dodsworth,  81  111.  87;  Muel- 
master,  85  111.  403;  Galbraith  ler  v.  Rebhan,  89  111.  342;  Bruner 
V.  McLain,  84  111.  379;  Muel-  v.  Battell,  83  111.  317;  Galbraith 
ler  V.  Rebhan,  89  111.  342;  v.  McLain,  84  111.  379;  Remann  v. 
Penn  v.  Oglesby,  89  111.  110;  Buckmaster,  85  111.  403;  Primmer 
People  V.  Starr,  50  111.  52;  Free-  v.  Clabaugh,  78  111.  94;  Boynton  v. 
man  v.  People,  54  111.  153;  Graub-  Phelps,  52  111.  211;  Steel  v.  Clark, 
ner  v.  Jacksonville,  etc.,  50  111.  87;  77  111.  471;  Ruggles  v.  Gatton,  50 
I.  C.  Ry.  Co.  V.  Weldon,  52  111.  290;  111.  412;  Kibbe  v.  Bancroft,  77  111. 
Leach    v.    Nichols,    55    111.     273; 


CONTEST  OF  WILLS  IN  CHANCERY.  195 

the   event   thereof,   shall  be   allowed   to   testify   therein    when 
any    adverse    party    sues    or    defends    as    executor,    admin- 
istrator, heir,  legatee  or  devisee,  unless  when  called  as  a  wit- 
ness by  such  adverse  parties  so  suing  as  defendants,  and  ex- 
cept in  certain  other  cases  named  in  the  statute,  to  wit:     A 
party   or  interested  person  may  testify  "to   facts   occurring 
after  the  death  of  such  deceased  person,  or  after  the  ward, 
heir,  legatee  or  devisee,  shall  have  attained  his  or  her  ma- 
jority."   And  any  agent  of  any  deceased  person,  is  competent 
to  testify,  "to  any  conversation  or  transaction  between  such 
agent  and  the  opposite  party  or  party  in  interest;  and  such 
opposite  party  or  party  in  interest  may  testify  concerning  the 
same   conversation   or  transaction."     And,   "when   any  such 
party  suing  or  defending  as  aforesaid,  or  any  person  having  a 
direct  interest  in  the  event  of  such  action,  suit  or  proceeding 
shall  testify  in  behalf  of  such  party  so  suing  or  defending, 
to  any  conversation  or  transaction  with  the  opposite  party  or 
party  in  interest,  then  such  opposite  party  or  party  in  interest 
shall  be  permitted  to  testify  as  to  the  same  conversation  or 
transaction."     And  "in  any  such  action,  suit  or  proceeding, 
any  witness,  not  a  party  to  the  record,  or  not  a  party  in  inter- 
est, or  not  an  agent  of  such  deceased  person  shall,  in  behalf 
of  any  party  to  such  action,  suit  or  proceeding,  testify  to  any 
conversation  or  admission  by  any  adverse  party  or  party  in 
interest  occurring  before  the  death  and  in  the  absence  of  such 
deceased  person,  such  adverse  party  in  interest  may  also  tes- 
tify as  to  the  same  admission  or  conversation."    And,  "in  any 
such  action,  suit  or  proceeding,  the  deposition  of  such  deceased 
person  shall  be  read  in  evidence  at  the  trial,  any  adverse  party 
or  party  in  interest  may  testify  as  to  all  matters  and  things 
testified  to  in  such  deposition  by  such  deceased  person,  and 
not  excluded  for  irrelevancy  or  incompetency."     The  general 
rule  as  laid  down  in  Bardell  v.  Brady,'*'  is:     Courts  of  equity 

18;  Wolcott  V.  Heath,  78  111.  433;     byterian    Church    v.    Emerson,    C6 
Long  V.  Conklin,  75  111.  32;   Pres-     111.  269. 

4—172  111.  424. 


196 


THE  LAW  OF  ESTATES. 


will  disregard  mere  matters  of  form  and  will  look  to  the  sub- 
stance, and  see  on  which  side  of  the  controversy  the  real  interest 
of  a  party  to  the  suit  who  is  interested  therein  lies,  and  deter- 
mine the  competency  of  the  witness  from  his  interest  in  the  case, 
regardless  of  the  mere  question  of  pleadings,  when  the  question 
is  as  to  his  interest  in  the  case.  Were  the  rule  otherwise,  the 
effect  and  force  of  the  statute  could  be  evaded/'' 

266.  What  constitutes  a  prima  facie  case  on  bill  to  con- 
test. In  Johnson  v.  Johnson,  it  is  said:*^  We  have 
held  that,  if  a  will  has  been  probated  in  the  County  Court,  a 
certificate  of  the  evidence  of  the  subscribing  witnesses  will  be 
prima  facie  proof  of  the  validity  of  the  will  in  a  proceeding 
in  chancery  which  attacks  the  probate  of  the  will.  Where  in 
addition  to  the  certificate,  the  testimony  of  one  of  the  sub- 
scribing witnesses  is  also  introduced,  sustaining  the  validity  of 
the  will,  a  prima  facie  case  in  favor  of  its  validity  is  unques- 


5— Pyle  V.  Pyle,  158  111.  289,  and 
see  the  following  cases,  as  to  ex- 
ceptions under  statute  clauses  one, 
two,  three,  four  and  five.  See 
cases  cited  generally  (note  3)  and 
the  following  as  to  "events  after 
the  death  of  decedent,  or  majority 
of  minor:'  In  re  Steel,  65  111.  322; 
Stewart  v.  Kirk,  69  111.  509 ;  Pease 
V.  Hunt,  60  111.  App.  586;  Black  v. 
Miller,  71  111.  App.  345;  Carr  v. 
Carr,  177  111.  456;  "As  to  transac- 
tions proved  hy  Agent  of  De- 
ceased" Marshall  v.  Karl,  60  111. 
208;  Jacquin  v.  Davidson,  49  HI. 
82 ;  Donlevy  v.  Montgomery,  66  111. 
227;  Loeb  v.  Stern,  99  111.  App. 
586.  As  to  transactions  proved 
hy  parties  entitled  to  benefit  of 
statute.  Penn  v.  Oglesby,  89  111. 
110;  Plain  v.  Roth,  107  111.  588; 
Bruner  v.  Battell,  83  111.  317; 
Pease  v.  Hunt,  60  111.  App.  586; 
Blanchard    v.    Blanchard,    191    111. 


454.  As  to  conversations  or  ad- 
missions during  life  of  deceased 
adduced  by  adverse  witnesses. 
Stonecipher  v.  Hall,  64  111.  121; 
Richerson  v.  Sternburg,  65  111. 
272;  Stevens  v.  Brown,  12  111.  App. 
619;  Buckman  v.  Alvord,  71  HI. 
155;  Maher  v.  Trust  Co.,  95  111. 
App.  375.  See  also  Starr  &  Curtis 
Annotated  Statutes  of  Illinois, 
with  Jones  &  Addington's  Supple- 
ments thereto.  Vol.  2,  pp.  1822  to 
1824  inclusive,  and  cases  cited 
under  sections  1  and  2,  clauses  1, 
2,  3,  4  and  5,  of  section  2,  chapter 
51,  entitled  "Evidence  and  Depo- 
sitions," Vol.  4,  pp.  605  to  608  in- 
clusive, and  cases  cited  under  sec- 
tions and  clauses  above  noted: 
Vol.  5,  pp.  254,  255  and  cases  cited 
under  said  sections.  Kurd's  R.  S. 
of  111.,  1905,  same  sections  and 
chapter,  pp.  1034,  1035. 
6—187  111.  93. 


CONTEST  OF  WILLS  IN  CHANCERY.         197 

tionably  made  out.'^  It  is  incumbent  on  the  proponents 
of  the  will  to  make  out  a  prima  facie  case,  in  the  first 
instance,  by  proper  proof  of  the  due  execution  of  the  will  by 
the  testator  and  of  his  mental  capacity,  as  required  by  statute. 
The  burden  of  proof  is  then  upon  the  contestants  to  prove  the 
allegations  of  their  bill,  by  a  preponderance  of  all  the  evidence, 
that  the  testator  was  mentally  incompetent.  The  law  throws 
the  weight  of  the  legal  presumption  in  favor  of  sanity  into  the 
scale  in  favor  of  the  proponents,  from  which  it  necessarily 
results  that  upon  the  whole  case  the  burden  of  proof  rests  upon 
the  contestants  to  prove  the  insanity  of  the  testator.^ 

267.  The  contents  of  a  lost  or  destroyed  will  may  be 
proved  by  a  single  witness.  That  the  contents  of  a  lost  or 
destroyed  will  may  be  proved  by  the  testimony  of  a  single  wit- 
ness, is  settled,  in  England,  since  the  decision  of  Sugden  v.  Lord 
St.  Leonards.^  And  the  like  ruling  has  obtained  in  this  coun- 
try.i^  And  in  this  country  the  ruling  in  general  is,  that  a 
will  may  be  established  by  one  only  of  the  attesting  witnesses, 
if  he  can  testify  to  a  compliance  with  the  statute  relating  to 
its  execution;  and  this  rule  has  been  adopted  in  Illinois.^i  And 
the  same  principle  is  applied  where  the  will  is  destroyed  or  lost, 
as  that  makes  no  difference.12  It  has  also  been  held  and  followed 
in  Illinois,  that  declarations,  written  or  oral,  made  by  a  testator 
after  the  execution  of  his  will  are,  in  the  event  of  its  loss,  ad- 

7 — Hollaway  v.  Galloway,  51  111.  Carpenter   v.    Calvert,    83    111.   62; 

159;  Buchanan  v.  Lennan,  105  111.  Johnson   v.   Johnson,   187   111.   86; 

56;  In  re  Page  Adm'r,  118  111.  576;  Huggins   v.    Drury,    192    111.    528; 

Slingloff  V.    Bivuner,  174    111.  561;  Thompson  v.  Bennett,  194  111.  57. 

Entwistle    v.    Meikle,    180    111.    9;  9—17    English    (Moak's    notes). 

Harp  V.  Parr,  168  111.  459;  Petefish  453. 

V.  Baker,  176  111.  452;  Graybeal  v.  10— Dickey   v.    Malechi,     6    Mo. 

Gardner,    146    111.    343;    Baker    v.  177. 

Baker,     202     111.     620;     Moore    v.  11— Doran  v.  Mullen,  78  111.  342. 

Moore,  211  111.  271.  12— Dickey    v.    Malechi,    6    Mo. 

8— Craig    v.    Southard,    162    111.  177;  Dan  v.  Brown,  4  Cowan,  483; 


209;  Craig  v.  Southard,  148  111.  37 
Taylor  v.  Pegram,  151  111.  106 
Wilber    v.    Wilber,    129    111.    392 


Sugden   v.    Lord    St.   Leonard,    17 
English   (Moak's  notes)   453. 


198  THE  LAW  OF  ESTATES. 

missible,  not  only  to  prove  that  it  has  not  been  cancelled,  but 
also  as  secondary  evidence  of  its  contents.^^ 

268.  Secondary  evidence.  Sometimes  it  becomes  abso- 
lutely necessary  to  resort  to  secondary  evidence,  and  witnesses 
must  be  produced,  who  can  legally  qualify  in  such  case;  they 
must  have  a  knowledge  of  the  general  character  of  the  hand- 
writing they  identify;  either  by  having  seen  the  party  write, 
or  by  having  seen  letters  or  other  documents  which  the  wit- 
ness has  in  the  course  of  business  recognized,  or  that  the  ab- 
sent party  admitted  to  be  his  own.  The  witness  then  examines 
the  writing  in  question  and  must  declare  his  belief  founded  on 
his  previous  knowledge  concerning  its  genuineness.  However, 
the  court  or  jury  can  compare  the  writing  in  question  with 
other  writings  of  the  party,  pertinent  to  the  issue,  put  in  evi- 
dence. Section  6,  of  the  Act  in  relation  to  wills,  provides  "that 
such  other  secondary  evidence  as  is  admissible  in  courts  of 
justice  to  establish  written  contracts  generally  in  similar 
cases,"  may  be  used  when  necessary .^^  This  section  of  the  stat- 
ute also  applies  to  lost  wills,  and  secondary  evidence  of  the  con- 
tents of  such  lost  instrument  is  admissible.^  ^ 

269.  Expert  witnesses.  In  Rutherford  v.  Morris, ^^  it 
is  said:  These  doctors  were  summoned  by  the  contest- 
ants, as  "experts,"  for  the  purpose  of  invalidating  a  will  de- 
liberately made  by  a  man  quite  as  competent  as  either  of  them 

13— 7n   re   Page,    118    111.,     578;  Cross  v.  People,  47  111.  152;   Fash 

Slingloff  V.  Bruner,  174  111.  569.  v.  Blake,  38  111.  368;   Brobston  v. 

14— Starr    &    Curtis    Annotated  Cahill,  64  111.  357;  Newton  v.  Lus- 

Statutes  of  Illinois,  with  Jones  &  ter,  13  111.  175;   In  re  Bronse,  18 

Addington's   Supplements   thereto.  111.  App.  436. 

Sec.  6,  Chapter  148,  "Wills."  Vol.  15— Jn  re  Page,  118  111.  576,  and 

3,  p.  4035,  and  cases  cited  under  cases  cited:   In  the  case  of  Ander- 

section   of   statute   noted   in   text,  son  v.   Irwin,  101   111.  413,  a  lost 

Vol.  5,  p.  1286,  and  cases  cited  un-  will  was  established  in  chancery, 

der  section  of    statute    noted    in  where  the  evidence  shows  a  will 

text.     Kurd's   R.    S.   of   111.    1905,  deliberately    destroyed.      And    see 

same  section  and  chapter,  p.  2051.  rule  applied  in  that  case. 

Putnam   v.   Wadley,    40   111.    346;  16—77   III.   404. 


CONTEST  OF  WILLS  IN  CHANCERY.         199 

to  do  such  an  act;  they  were  the  contestants'  witnesses,  and  so 
considered  themselves.  The  testimony  of  such  is  worth  but 
little,  and  should  always  be  received  by  juries  and  courts  with 
great  caution.  It  was  said  by  a  distinguished  judge,  in  a  case 
before  him,  if  there  was  any  kind  of  testimony  not  only  of  no 
value,  but  even  worse  than  that,  it  was,  in  his  judgment,  that 
of  medical  experts.  They  may  be  able  to  state  the  diagnosis 
of  the  disease  more  learnedly,  but,  upon  the  question  whether 
it  had,  at  a  given  time,  reached  such  a  stage,  that  the  subject 
of  it  was  incapable  of  making  a  contract,  or  irresponsible  for 
his  acts,  the  opinion  of  his  neighbors,  if  men  of  good,  common 
sense,  would  be  worth  more  than  all  the  experts  in  the  coun- 
try. In  the  case  of  Carpenter  v.  Calvert, ^'^  it  is  said: 
Physicians  may  be  regarded  experts  as  to  the  condition  of  the 
body,  and  as  to  what  diseases  tend  to  impair  the  mind,  but  it 
does  not  follow,  from  the  mere  fact  that  they  are  physicians, 
that  they  are  any  better  judges  of  the  degree  of  mental  capac- 
ity than  other  men  of  good  common  sense.  It  has  always  been 
held  in  this  state,  that  the  testimony  of  neighbors  of  the  testa- 
tor or  testatrix,  stating  in  detail  what  the  testator  or  testatrix, 
said  and  done,  with  their  opinion  based  on  such  facts,  is  of  more 
weight  upon  the  question  of  testamentary  capacity  than  the 
opinions  of  experts  not  based  on  actual  observation.^^  Proof 
of  insanity  of  collateral  blood  relations  of  the  testator  is  per- 
missible, not  further  removed  than  uncles  and  aunts.^^ 

270.  Upon  a  supposed  state  of  facts  only  an  expert  can  tes- 
tify. A  witness  not  an  expert  cannot  testify  to  an  opinion 
upon  a  supposed  state  of  facts.20  A  witness  can  not  give  his 
opinion  of  the  mental  capacity  of  the  testator  to  dispose  of  his 

17—83  111.  71.  127  111.   523;    Bevelot  v.   Lestrade, 

18— Reynolds  v.   Adams,  90   111.  153   111.    625;    Amos  v.   Am.   T.   & 

134;  Pittard  v.  Foster,  12  111.  App.  Sav.  Bank,  221  111.  100. 

132;   Keithley  v.  Stafford,  126  111.  19— Dillman    v.    McDaniel,    222 

507.    American    Bible    Society    v.  111.  276. 

Price,  115  111.  623;   Beverly  v.  Mc-  20— Prittard    v.    Foster,    12    111. 

Gough,  115  111.  11;   Guild  v.  Hall,  App.    132;    Am.    Bible    Society   v. 

Price,  115  111.  623. 


200  THE  LAW  OF  ESTATES. 

property  by  will ;  the  quantum  of  intelligence  is  for  the  court. 21 
In  Craig  v.  Southard,  it  is  held:22  All  persons  who 
have  had  the  means  of  observation  are  permitted  to 
testify  concerning  the  existence  and  measure  of  capacity 
of  a  testator,  so  far  as  it  may  tend  to  shed  light 
upon  the  issue,  and  may  give  their  opinions  touching  mental 
capacity,  based  upon  such  observation.  The  weight  or  effect 
of  such  opinions  depends  upon  the  means  of  knowledge  of  the 
witness  and  the  facts  on  which  it  is  based,  possible  of  delinea- 
tion, and  the  capacity  of  the  witness  to  correctly  interpret 
what  he  has  observed.  Therefore,  the  facts  upon  which  the 
opinion  is  predicated  may  be  gone  into,  either  to  sustain  and 
give  force  to  the  opinion,  or  to  discredit  it.^^  In  the  case  of  Baker 
V.  Baker, ^*  the  witnesses  (none  of  whom  testified  as  experts) 
were  asked  the  questions  ' '  whether  or  not  the  testator,  at  the  time 
of  making  the  alleged  will,  had  sufficient  mind  and  memory  to 
understand  the  will  in  question  ? "  * '  whether  or  not  he  was  able  to 
carry  in  his  mind  and  memory  the  nature  and  extent  of  his  prop- 
erty?" and  "whether  or  not  he  was  able  to  understandingly 
execute  a  will?"  which  questions  were  objected  to  on  the  trial 
and  the  objections  sustained.  The  court  passing  upon  the 
record,  say:  These  questions  simply  called  for  the  conclu- 
sions of  the  witnesses  as  to  testamentary  capacity.  In  other 
words,  the  attempt  was  to  put  the  witnesses  in  the  place  of  the 
jury,  and  allow  them  to  determine  the  very  issue  which  it  was 
sworn  to  try;     the  evidence  was  clearly  improper.^^ 

21 — Keithley  v.  Stafford,  126  111.  the    actual    interest,    and    not   his 

507;    Schneider    v.    Manning,    121  belief,  understanding  or  feeling  in 

111.  376.  regard  to  such  interest.    A  woman 

22 — 148  111.  37.  who,  as  heir,  would  receive  in  fee 

23 — Baker  v.  Baker,  202  111.  608;  one-third  of  the  property  of  which 

Amos  V.  Am.  T.  &  Sav.  Bank,  221  her  father  died  seized,  while  under 

111.  100.  his   will   she   would   have  only   a 

24—202  111.  608.  contingent    life    estate    in    ninety- 

25 — Schneider   v.   Manning,   121  nine  acres  of  land,  subject  to  for- 

111.  376;  Pyle  v.  Pyle,  158  111.  289.  feiture  on  her  attempt  to  sell  or 

In  this  case  it  was  held  the  inter-  incumber  it,  has  interests  adverse 

est  that  disqualifies  a  witness  is  to  those  who  claim  under  the  will. 


CONTEST  OF  WILLS  IN  CHANCERY. 


201 


271.  Statements  and  declarations — before  and  after  making 
will.  In  Kaenders  v.  Mofitague,^^  where  a  will  is  charged  to 
have  been  executed  through  undue  influence,  the  declara- 
tions of  the  testator  made  before  its  execution  are  admissible 
by  way  of  rebuttal  to  show  his  intention  as  to  the  disposi- 
tion of  his  property,  upon  the  ground  that  a  will  made 
in  conformity  with  such  declarations  is  more  likely  to  have 
been  executed  without  undue  influence  than  if  its  terms  are 
contrary  to  such  declarations.^'^  The  rule  as  above  stated,  in  re- 
gard to  prior  declarations  which  are  in  harmony  with  the 
provisions  of  a  contested  will,  in  no  way  conflicts  with  the  well 
settled  rule,  that  statements  made  by  the  testator,  either  before 
or  after  the  execution  of  a  contested  will,  which  are  in  conflict 
with  the  provisions  thereof,  do  not  invalidate  or  modify  such 
will  in  any  manner.  Parties  making  wills  cannot  invalidate 
them  by  their  parol  declarations  made  previously  or  subse- 
quently.2^     The  declarations  and  statements  of  a  testator,  made 


so  as  to  render  her  incompetent  as 
a  witness  against  th.em  in  a  suit 
to  set  aside  the  will.  So  it  is  held 
in  the  same  case,  the  right  of  a 
husband  to  testify  in  a  litigation 
concerning  his  wife's  separate  es- 
tate, "as  other  parties  may,"  un- 
der the  provisions  of  the  act  on 
evidence  and  depositions,  does  not 
extend  to  a  suit  against  executors 
and  devisees  to  set  aside  a  will 
in  which  his  wife's  interests  are 
adverse  to  the  will.  It  was  also 
held  in  the  case  considered,  that 
it  was  not  error  to  admit  in  evi- 
dence the  verdict  of  the  coroner's 
jury  at  the  inquest  held  on  the 
body  of  deceased,  for  the  purpose 
of  showing,  prima  facie,  that  he 
committed  suicide.  Supported  by 
the  case  of  United  States  Life  Ins. 
Co.  v.  Vocke,  129  111.  557.  But 
it  was  held  error  in  Pyle  v.  Pyle, 
supra,  where  the  lower  court  per- 


mitted to  be  answered  over  objec- 
tions made,  to  the  evidence  of  an 
expert  witness,  a  question  not  em- 
bodied in  a  hypothetical  statement 
of  the  facts,  and  calls  upon  such 
witness  to  put  himself  in  the  place 
of  the  jury,  and  thereby  pass  upon 
the  whole  issue.  This  ruling  find- 
ing such  error  being  supported  by 
City  of  Decatur  v.  Fisher,  63  111. 
241;  Chicago  &  Alton  R.  R.  Co.  v- 
Springfield  &  Northwestern  R.  R, 
Co.,  67  111.  142;  Chicago,  R.  I.  & 
P.  R.  R.  Co.  V.  Moffatt,  75  111.  524 ; 
Louisville,  New  Albany  and  Chi- 
cago Ry.  Co.  V,  Shires,  108  111. 
617;  1  Greenleaf  on  Evidence,  sec. 
440. 

26—180  111.  307. 

27— Harp  v.  Parr,  168  111.  459; 
Goodbar  v.  Lidikey,   136  Ind.   1. 

28— Taylor  v.  Pegram,  151  111. 
106;   Dickey  v.  Carter,  42  111.  376. 


202  THE  LAW  OF  ESTATES. 

before  or  after  the  execution  of  his  will,  may  be  proved  for  the 
purpose  of  showing  his  mental  condition  at  the  time  of  the  exe- 
cution of  the  will.-'*  And  where  the  testator  has  made  previous 
wills,  his  declarations  and  statements  made  about  the  time  of  the 
execution  of  those  former  wills,  upon  the  subject  of  or  manner 
in  which  he  had  therein  disposed  of  his  property,  have  been  held 
to  be  competent  evidence.^"^ 

272,  Testamentary  capacity.  In  the  early  case  of 
Lilly  V.  Wagganer,^^  the  rule  was  stated  to  be  that  a  want 
of  mental  power  must  be  such  as  to  render  the  testator  inca- 
pable of  acting  rationally  in  the  ordinary  affairs  of  life,  or 
incapable  of  understanding  the  effects  and  consequences  of  his 
act;  and  further,  that  legal  soundness  of  mind,  until  inquest 
had,  is  a  presumption  of  law,  to  be  overturned  by  proof  only 
of  incompetency  at  the  time  of  the  act  in  question.  In 
Trish  V.  Newell,  it  is  said:^^  That  prior  incompetency  or 
insanity  of  the  testator,  arising  from  accident  or  temporary  dis- 
ease, does  not  presume  after  incompetency  to  make  a  will; 
it  is  enough  if  the  testator  understood  the  nature  of  the  busi- 
ness in  which  he  is  engaged;  has  recollection  of  the  property  he 
intends  to  devise ;  of  the  persons  who  are  the  objects  of  his 
bounty,  and  of  the  manner  in  which  it  is  to  be  distributed 
among  them.  The  best  form  of  expressing  the  law  as  to  mental 
capacity  is,  was  the  testator's  mind  and  memory  sufficiently 
sound  to  enable  him  to  know  and  understand  the  business  in 
which  he  was  engaged  at  the  time  he  executed  the 
will.33  The  courts  generally  apply  the  rule  where  per- 
sons have  arrived  at  full  age,  that  presumption  must 
be  indulged,  where  the  party  has  the  requisite  capacity  to  enter 

29— Nieman  v.  Schnitka,  181  111.  403;     Thompson    v.    Bennett,    194 

403;  Craig  V.  Southard,  148  III.  37;  111,  57;   Wombacher  v.  Barthelme, 

Petefish  V.   Becker,   176    111.    448;  194  111.  425. 

Hill  V.  Bahrns,  158  111.  314;  Taylor  31—27  111.  395. 

V.  Pegram,  151  111.  106.  32—62  111.  196. 

30— Taylor   v.   Pegram,   151   111.  33— Yoe  v.   McCord,   74   111.   33; 
106;  Neiman  v.  Schnitka,  181  111. 


CONTEST  OF  WILLS  IN  CHANCERY.         203 

into,  and  bind  himself  by  all  lawful  engagements,  and,  amongst 
others,  may  dispose  of  his  property  by  testament ;  and  to  avoid 
these  acts,  the  presumption  must  be  rebutted  by  showing  a 
want  of  sufficient  intellectual  capacity  to  make  the  agreement 
or  the  disposition  of  his  property  by  will.  Like  all  other  mat- 
ters relating  to  the  human  mind,  it  is  difficult  to  fix  any  precise, 
undeviating  rule  by  which  it  can  be  determined  when  a  person 
has  mind  and  memory.  And  further,  it  is  a  rule  of  law,  "that 
a  person  who  is  capable  of  transacting  ordinary  business,  is 
also  capable  of  making  a  valid  will.  It  is  not  required  he  shall 
possess  a  higher  capacity  for  that,  than  for  the  transaction  of 
the  ordinary  affairs  of  business."  "And  the  usual  test  is,  that 
the  party  be  capable  of  acting  rationally  in  the  ordinary  affairs 
of  life. "  In  a  recent  case  where  a  confidential  agent  had  procured 
a  will  to  be  drawn,  it  was  held :  Such  act  does  not  show  undue 
influence ;  or  the  fact  in  that  connection,  that  testatrix  is  unedu- 
cated, where  it  appears  she  is  otherwise  a  woman  of  strength 
of  mind  and  intellect  and  business  capacity,  even  though  she 
is  unable  to  read,  does  not  justify  setting  aside  her  will,  where 
she  was  able  to  and  did  sign  her  name  to  the  instrument.  In 
such  case  it  will  be  presumed  the  testatrix  knew  the  contents  of 
her  will.^* 

In  Craig  v.  Southard,^^  the  court  admits  there  is  per- 
haps some  confusion  in  the  books  and  difficulty  has  always 
been  found,  in  formulating  tests  by  which  to  determine  testa- 
mentary capacity.  Opportunity  for  observation  of  the  mental 
condition  of  persons  occurs,  ordinarily,  in  the  common  affairs 
of  life,  and  as  it  requires  no  greater  mental  capacity  to  dispose 
of  property  by  will  than  to  transact  ordinary  business,  such  as 
buying  and  selling,  collecting,  loaning,  leasing,  and  the  like 
transactions,  it  has  been  generally  held  that  capacity  to  trans- 
act such  ordinary  business  would  show  testamentary  capacity .3« 

Meeker  v.  Meeker,  75  111.  260.  36 — Brown  v.  Riggin,  94  111.  560; 

34 — Compiler   v.    Browning,    219  Rutherford  v.  Morris,  77  111.  397; 

III.  429.  Freeman  v.   Easley,   117   111.   317; 

35 — Craig  v.   Southard,  148   111.  Campbell  v.  Campbell,  130  111.  481 ; 

45.  Myatt  v.  Walker,  44  111.  485;  Trislj 


204  THE  LAW  OF  ESTATES. 

Another  rule  laid  down  and  cited  in  Craig  v.  Southard^  was, 
"The  real  question  submitted  to  the  jury  is  not  whether 
the  party  had  sufficient  mental  capacity  to  comprehend  and 
transact  ordinary  business,  but  did  he,  at  the  time  of  making 
the  instrument  purporting  to  be  his  will,  have  such  mind  and 
memory  as  enabled  him  to  understand  the  particular  business  in 
which  he  was  then  engaged.^^  If  he  did,  if  he  was  able  to  remem- 
ber who  were  the  natural  objects  of  his  bounty,  recall  to  mind  the 
property,  and  make  disposition  of  it  understandingly,  according 
to  some  purpose  or  plan  formed  in  his  mind,  he  was  possessed 
of  testamentary  capacity  and  with  such  capacity,  uninfluenced 
improperly  by  others,  he  may  make  valid  testamentary  disposi- 
tion of  his  estate. 

273.  In  Brice  v.  Hall,^^  the  facts  in  the  case  nicely 
illustrate  the  application  of  the  rules :  In  that  case  the  wit- 
ness was  unwilling  to  declare  on  oath  he  believed  the  testator 
was  of  ''sound  mind."  The  testator  had  been  afflicted  with 
what  the  witness  called  "spells,"  and  had  so  many  of  them 
his  mind  was  injured.  When  asked  whether  the  testator  under- 
stood what  he  was  doing,  the  witness  replied:  "I  suppose  he 
understood  it — that  was  my  supposition. ' '  When  under  the  in- 
fluence of  "spells,"  the  witness  says  he  was  not  fit  for  business, 
but  at  other  times,  he  says  he  "couldn't  do  a  great  deal  of 
business — of  course  he  done  some  little. ' '  The  witness  says  the 
testator  was  not  under  a  "spell"  on  the  day  he  signed  his  will. 
On  being  inquired  of,  if  he  saw  anything  on  that  day  that  led 
him  to  doubt  the  soundness  of  the  testator's  mind,  the  witness 
answered:    "I  didn't  see  anything,  at  that  time,  that  was  any- 

V.   Newell,   62   111.   196;    Schneider  38— 1  Redfield  on  Wills,  123,  124; 

V.  Manning,  121  111.  376;  Greene  v.  Campbell  v.  Campbell,  130  111.  481; 

Greene,   145  111.  264;    Compher  v.  Greene    v.    Greene,    145    111.    264; 

Browning,    219    111.     429.      These  Stevens  v.  Van  Cleave,  4  Wash.  C. 

authorities  follow  the  general  doc-  C.  262;    Harrison  v.  Rowan,  3  id. 

trine  laid  down  in  Craig  v.  South-  580. 

ard,  supra  (35).  39—120  111.  601. 

37— Craig   v.    Southard,    148   111. 
45. 


CONTEST  OF  WILLS  IN  CHANCERY.         205 

thing  more  than  just  his  ordinary  way  of  living."  The  testa- 
tor came  out  of  his  house  and  called  the  witness,  as  he  was 
passing  on  the  street,  to  come  in  to  witness  his  will.  On  coming 
into  the  house,  the  testator  introduced  him  to  the  other  sub- 
scribing witness,  and  both  witnesses  then  attested  the  will  in 
the  presence  of  the  testator,  and  at  his  request,  and  in  the 
presence  of  each  other. 

Question  by  the  court:  "Is  it  your  belief,  that  at  the  time  he 
signed  this  will  he  was  of  sound  mind  and  memory?" 

A.  "To  give  my  honest  belief  about  it,  it  is  just  this  way — 
I  want  the  court  to  understand  what  I  say — I  don 't  think  Uncle 
Logan,  in  his  last  years,  had  been  perfectly  sound.  That's  what 
I  believe,  if  you  want  my  belief  about  it.  But  that  day  he 
was  as  natural  and  rational  as  common  to  see  him.  Anybody 
not  knowing  anything  about  him  at  all,  would  suppose  he  was 
all  right.  That's  my  honest  belief  about  it.  That's  just  what 
I  want  the  court  to  understand — not  that  I  know  anything  that 
day  more  than  that."  The  court  held  the  condition  of  the 
testator's  mind  shows  testamentary  capacity. 

In  Campbell  v.  Campbell,  in  applying  the  rule  it  was 
said:'**'  One  may  have  the  capacity  to  comprehend  a  few  simple 
details,  and  in  consequence  have  testamentary  capacity  to 
make  valid  disposition  of  his  property,  while  if  he  had  to  re- 
member many  facts,  and  comprehend  many  details,  the  same 
degree  of  mental  capacity  would  be  wholly  insufficient  to  an 
intelligent  understanding  of  the  business  in  which  he  was 
engaged.  The  difficulty  of  stating  standards  or  tests  by  which 
to  determine  the  degree  of  mental  capacity  of  a  particular  per- 
son, has  been  everywhere  recognized,  and  grows  out  of  the 
inherent  impossibility  of  measuring  mental  capacity,  or  its 
impairment  by  disease  or  other  causes.^^ 

40 — 130  111.  481.  These  authorities  indicate  there  is 

41 — Herman    v.    Vogt,    181    111.  no   proper   rule   for   the   measure- 

400;  Ring  v.  Lawless,  190  111.  520;  ment   of   mental    capacity,    or    its 

Swearingen     v.     Inman,     198     111.  impairment    by    disease    or    other 

256;  Waters'  v.  Waters,  222  111.  26.  causes.    It  will  be  found  that  each 


2U6  THE  LAW  OP  ESTATES. 

274.  Sound  mind  and  memory.  The  Illinois  courts,  and 
most  of  the  courts  are  iu  complete  harmony  to  the  effect  "that 
the  law  presumes  every  man  to  be  sane  until  the  contrary  is 
proven,  and  the  burden  of  proof  rest  upon  the  party  contesting 
a  will  where  unsound  mind  or  insanity  is  made  the  issue.^^ 

In  Whipple  v.  Eddy,  the  court  passing  upon  the  question 
says:'*2  "We  have  often  held  that  a  person  who  is  capable  of 
transacting  the  ordinary  business  affairs  of  life  is  capable  of 
making  a  will.  "^"^  The  fact  that  a  person  is  affected 
with  insanity,  or  labors  under  some  delusion,  believes 
in  witchcraft,  clairvoyance,  spiritual  influences,  presentments 
of  the  occurrence  of  future  events,  dreams,  mind  reading, 
etc.,  will  not  affect  the  validity  of  his  will  on  the  ground  of  in- 
sanity,'*^ Manifestly,  a  man's  belief  can  never  be  made  a  test  of 
sanity.  When  we  leave  the  domain  of  knowledge  and  enter 
upon  the  field  of  belief,  the  range  is  limitless,  extending  from 
the  highest  degree  of  rationality  to  the  wildest  dream  of  super- 
stition, and  no  standard  of  mental  soundness  can  be  based  on 
one  belief  rather  than  another.  What  to  one  man  is  a  reason- 
able belief  is  to  another  wholly  unreasonable,  and  while  it  is 
true,  that  belief  in  what  we  generally  understand  to  be  super- 
natural things  may  tend  to  prove  insanity  under  certain  cir- 

case  presents  its  peculiar  facts,  42 — Argo  v.  CoflBn,  142  111."  368; 
upon  which  the  question  of  mental  Guild  v.  Hull,  127  HI.  523;  Men- 
capacity  may  be  determined  by  the  kins  v.  Lightner,  18  111.  282;  Craig 
court  or  jury.  And  it  is  a  fact  v.  Southard,  162  111.  209;  Wilber 
also,  that  what  establishes  mental  v.  Wilber,  129  111.  392;  Waters  v. 
capacity  in  one  case  may  not  da  Waters,  222  111.  26. 

so   in   another,   owing   to   circum-         ., ..„^   ,..    ^^o 

stances  or  conditions,  in  one  case, 

that  may  not  be  considered  in  an-  44— Campbell    v.    Campbell,    130 

other.     The  law  always  presumes  ^l-  466,  and  cases  cited  therein  by 

party  making  a  will   or  deed   as  ^^^  court. 

sound    and    sane;    the   burden    of  45 — I  Redfield  on  Wills,  79  note 

proving  an  unsound   condition   of  9;   Chafee's  Will,  32  Wis.  557;  In 

mind    is    always   upon    the    party  re  Smith,  52  Wis.  543;   Brown  v. 

contesting  the  will  or  deed.     See  Ward,   53   Md.   423;     Campbell    v. 

the  following  authorities  sustain-  Campbell,  130  111.  466. 

ing  the  text. 


CONTEST  OF  WILLS  IN  CHANCERY.         207 

cuinstances,  it  is  a  well  known  fact  that  many  of  the  clearest 
and  brightest  intellects  have  sincerely  and  honestly  believed 
in  spiritualism,  mind  reading,  etc.^^' 

In  Baker  v.  Baker,  it  is  held:"*^  "The  burden  of 
proof  (after  establishing  a  prima  facie  case)  is  upon  the  con- 
testants to  prove  the  allegations  of  their  bill,  by  a  preponder- 
ance of  all  the  evidence,  that  the  testator  was  mentally  incom- 
petent. The  law  throws  the  weight  of  the  legal  presumption 
in  favor  of  sanity  into  the  scale  in  favor  of  the  proponents, 
from  which  it  necessarily  results  that  upon  the  whole  case  the 
burden  of  proof  rests  upon  the  contestants  to  prove  the  insanity 
of  the  testator. 

In  Bing  v.  Lawless,  the  court  quoting  from  its  opin- 
ion in  Daily  v.  Daily,  say:*^  "Section  1  of  chapter 
148,  of  the  Revised  Statutes,  entitled  'Wills,'  relates  to  the 
competency  of  the  testator;  and  as  to  his  requisite  mental  ca- 
pacity the  expression  of  the  statute  is,  such  testator  shall  be 
'of  sound  mind  and  memory.'  Long  prior  to  the  enactment 
of  the  statute  the  legal  meaning  of  the  phrases  'sound  mind 
and  memory'  and  'sound  and  disposing  mind  and  memory'  and 
'sound  and  disposing  mind'  had  become  well  established.  They 
were  convertible  terms,  and  were  used  interchangeably,  to  de- 
note that  degree  of  mental  strength  and  power  deemed  requisite 
to  testamentary  capacity.  Absolutely  sound  and  perfect  mental 
faculties  were  not  requisite  to  such  capacity,  nor  was  such  the 
interpretation  of  the  word  'sound'  as  employed  in  any  such 
phrases  but  the  phrases  were  employed  as  expressive,  in  their 
entirety,  of  the  degree  of  mental  power  and  vigor  which  a 


46— Campbell    v.    Campbell,    130  47—202  111.  620.     The  following 

111.   466.     In  this  case,  the  court  cases  support  the  doctrine  of  that 

in   passing   upon   the  question   of  case.     Craig  v.   Southard,  162   111. 

the  insanity  of  the  testator  raised  209;    Same  v.   Same,   148   111.   37 

in  that  case  upon  the  theory  of  Carpenter  v.  Calvert,   83   111.   62 

his  peculiar  belief,  say:     What  to  Huggins   v.    Drury,    192    111.    528 

one  man  is  a  reasonable  belief  is  Thompson  v.  Bennett,  194  111.  57. 

to  another  wholly  unreasonable.  48—190  111.  530;  183  111.  269. 


208  THE  LAW  OF  ESTATES. 

testator  should  possess  in  order  to  be  competent  to  dispose  of 
his  estate  by  will."^^ 

275.  What  is  the  effect  of  old  age  upon  testamentary  capac- 
ity. The  case  of  Rutherford  v.  Morris,^^  raised  the 
issue,  that  the  testator  was  old  and  infirm  and  suffered  chiefly 
from  senile  dementia,  which  incapacitated  him  from  making  a 
valid  will.  The  case  was  tried  by  a  jury,  who  found  the  issue 
for  the  contestants.  On  appeal  to  the  supreme  court,  the  case 
was  reversed.  On  page  408,  the  court  says:  **It  is  upon  the 
ground  of  senile  dementia,  chiefly,  this  ease  rests.  As  this  is 
wholly  disproved  as  existing  at  the  time  of  the  execution  of 
this  will,  or  at  any  time  previous,  the  verdict  should  have  been 
for  the  proponents  of  the  will.  What  is  the  effect  of  old  age 
upon  testamentary  capacity,  is  a  subject  which  has  received 
the  attention  of  all  courts,  this  among  them ;  and  it  has  never 
been  held,  anywhere,  that  old  age  alone  denotes  incompetency. 

In  Watson  v.  Watson,^^  one  eighty-six  years  old,  and  af- 
flicted with  disease,  was  held  competent  to  execute  a  will.  So, 
also,  one  of  eighty  years  of  age,  with  energies  greatly  impaired.^^ 
In  Van  Arst  v.  Hunter,  Chancellor  Kent  said,  in  regard  to  the 
will  of  a  person  between  ninety  and  one  hundred  years  of  age: 
"A  man  may  freely  make  his  testament,  how  old  soever  he  may 
be.  It  is  one  of  the  painful  consequences  of  extreme  old  age,  that 
it  ceases  to  excite  interest,  and  is  apt  to  be  left  solitary  and  neg- 
lected. The  control  which  the  law  still  gives  to  a  man  over 
the  disposal  of  his  property,  is  one  of  the  most  efficient  means 
he  has,  in  protracted  life,  to  command  the  attention  due  to  his 
infirmities.    The  will  of  such  an  aged  man  ought  to  be  regarded 

49 — Sec.    1,    Chapt.     148,    Wills,  in  question;  Vol.  5,  p.  573,  et  seq.. 
Starr  &  Curtis  Annotated  Statutes  under    head    of    "General    Notes." 
of  Illinois,  with  Jones  &  Adding-  Hurd's  R.  S.  of  111.  1905,  same  sec- 
ton's  Supplements  thereto.  Vol.  3,  tion  and  chapter,  p.   2050. 
p.    4022,   et  seq.,   and   cases   cited  50—77  111.  397. 
under  section  of  statute  in  ques-  51 — 2  B.  Monroe  74;  2  B.  Monroe 
tion;    Vol.   4,   pp.    1283,   1284,    and  79. 
cases  cited  under  section  of  statute  52 — 5  Johns,  Ch.  148. 


CONTEST  OF  WILLS  IN  CHANCERY.         209 

with  great  tenderness,  when  it  appears  not  to  have  been  pro- 
duced by  fraudulent  acts,  but  contains  those  very  dispositions 
which  tiie  circumstances  of  his  situation  and  the  course  of  the 
natural  affections  dictated." 

In  Entwistle  v.  Meikle,^^  the  record  shows  the  tes- 
tator was  a  man  of  91  years  of  age  at  the  time  of  executing  his 
will,  was  of  robust  constitution,  with  a  strong  and  vigorous 
mind ;  that  he  transacted  his  ordinary  business  both  before  and 
for  more  than  a  year  after  the  execution  of  his  will,  making 
leases  of  his  farms,  buying  village  lots  and  in  one  instance  pur- 
chasing 335  acres  of  land.  The  will  was  contested  on  the 
ground  of  mental  incapacity  and  unsound  memory,  but  the 
court  held  the  will  good. 

276.  Fraud  ajid  compulsion,  or  improper  conduct,  are  al- 
ways questions  of  fact  arising  and  connected  with  the  making 
and  executing  of  wills.  The  testator  or  testatrix  under  the 
well  settled  rules  of  law,  relating  to  valid  willSj  must  not  be 
imposed  upon,  unduly  influenced,  or  be  compelled  to  submit  to 
improper  conduct,  by  any  person  that  would  tend  to  impair 
or  affect  the  free  agency  of  the  maker  of  such  an  instrument. 
The  law  assumes  the  maker  of  a  will  has  the  utmost  confidence 
in  the  party  putting  the  will  in  form;  and,  the  law  demands 
he  should  be  extremely  careful,  not  to  misstate  its  contents  to 
the  testator,  when  such  are  ill,  infirm,  old  or  otherwise  lacking 
in  mental  force  and  vigor  at  the  time  the  will  is  made.  And 
this  is  especially  so,  if  the  testator  or  testatrix  could  not  or  did 
not  read  the  will  before  signing  the  same.  Fraud  in  respect  to 
the  execution  of  wills,  like  fraud  in  other  transactions,  cannot 

53 — 180  111.  9;  In  Entwistle  v.  inquiry  to  cover  the  full  period  up 
Meikle,  it  was  held,  where  the  pro-  to  the  testator's  death.  The  rec- 
ponents'  witnesses  having  testified  ords  of  the  county  court  showing 
as  to  the  testator's  mental  capacity  the  appointment  of  a  conservator 
in  business  transactions  during  a  for  the  testator  some  years  after 
period  of  several  years  before  and  the  execution  of  the  will  in  con- 
after  the  execution  of  the  will  in  test  excluded  by  the  lower  court 
question,  the  contestants  can  not  v.-ere  held  properly  excluded  in 
on  cross-examination,  extend  their  this  case. 
14 


210  THE  LAW  OF  ESTATES. 

be  exactly  defined,  it  is  never  a  presumption  of  law,  and  the 
circumstances  in  one  case  is  rarely  a  precedent  for  another. 
iWhere  it  appears  from  competent  evidence,  the  will  procured, 
is  not  the  will  of  the  testator  or  testatrix,  but  that  of  another 
substituted,  it  is  simple  fraud,  and  courts  will  unhesitatingly 
set  aside  every  such  instrument  thus  procured.  And  should 
it  appear  from  competent  evidence,  that  the  will  in  question 
was  procured,  by  misstating  its  contents  to  a  testator,  who 
could  not  or  did  not  read  it;  or  by  omitting  to  read  some  im- 
portant provision;  or  pretending  to  read  provisions  into  the 
will,  which  in  fact  were  not  there,  leaving  the  maker  of  the  will 
to  believe,  when  it  was  signed  and  witnessed,  that  his  or  her 
will  was  written  as  it  was  read,  or  as  its  contents  were  stated 
to  him  or  her;  or  by  wrongly  substituting  one  paper  for  an- 
other, and  having  him  or  her  sign  the  substituted  paper  for  his 
or  her  will,  under  the  belief  it  was  the  one  he  or  she  intended 
to  sign,  is  common  fraud  and  will  not  be  tolerated  by  the 
courts  when  called  upon  to  act.  What  circumstances  amount 
to  proof  of  fraud  is  not  matter  of  legal  definition;  the  legal  test 
is,  the  sufficiency  of  the  evidence  to  satisfy  the  understanding 
and  the  conscience."*  Where  property  is  conveyed  for  the  fraud- 
ulent purpose  of  defeating  the  rights  of  the  wife  of  the  grantor, 
equity  in  applying  the  law  will  leave  the  parties  where  they 
placed  themselves.^^ 

277.  Undue  influence  and  improper  conduct,  is  often  inter- 
mingled with  fraud ;  the  greatest  per  cent  of  contested  wills  are 
always  based  upon  fine  legal  distinctions,  whereby  the  courts, 
define  or  attempt  to  define,  undue  influence,  improper  con- 
duct, or  simple  fraud.  It  will  be  observed,  however,  that  in 
each  case,  some  line  of  circumstances,  supported  by  direct  or 
indirect  evidence,  usually  force  the  term  applied  to  the  case  in 
hand.      Thus,     in     the     case     of     Smith    v.    Hamline,^^     un- 

54— Carter    v.    Gunnels,    67    111.  Jones  v.  Jones,  213  III.  228;  Jolly 

270.  V.   Graham,   222   111.   550. 

55— Miller  v.  Markle,  21  111.  152;         56—174  111.   184. 
Kirkpatrick  v.  Clark,  132  111.  342; 


CONTEST  OF  WILLS  IN  CHANCERY.         211 

due  influence  is  defined  as  "any  improper  conduct,  machina- 
tion, or  urgency  of  persuasion,  whereby  the  will  of  a  person 
is  overpowered,  and  he  is  inclined  to  do,  or  forbears,  an  act 
which  he  would  not  do,  or  would  do,  if  left  to  act  freely.  And 
such  may  be  inferred  from  union  of  circumstances,  as,  de- 
parture from  terms  of  previous  will,  false  impressions  under 
which  the  instrument  is  made,  active  agency  of  beneficiary  in 
procuring  it;  absence  of  those  who  had  equal  claims  upon  tes- 
tator, old  age  accompanied  by  feebleness  and  disease."  It  was 
also  held  in  that  case,  ''While  the  existence  of  an  illicit  relation 
between  the  testator  and  the  beneficiary,  does  not  raise  a  legal 
presumption  of  undue  influence,  it  is  a  circumstance  from 
which  such  influence  may  be  more  fully  inferred.  And  such 
fact  may  be  shown  and  considered  with  proof  tending  to  show 
constraint  and  interference  by  the  beneficiary ;  with  impaired 
mental  capacity,  loss  of  will  power,  disease  and  other  impair- 
ments of  the  testator  when  the  will  was  made. ' ' 

But  the  rule  is:  Undue  influence  to  invalidate  a  will,  must 
be  connected  with  the  execution  of  the  will,  and  must  be  such 
as  to  deprive  the  testator  or  testatrix  of  free  agency.^""^  Upon 
a  charge  of  want  of  testamentary  capacity,  and  fraud  and 
undue  influence  in  procuring  the  execution  of  a  will,  evi- 
dence is  admissible  of  matters  occurring  in  the  testator's  fam- 
ily and  his  relations  with  the  beneficiaries,  and  his  declarations 
showing  his  feelings  toward  them.-^^ 

278.  General  influence,  such  as  advice,  argument  or  per- 
suasion, made  freely,  will  not  be  sufficient  to  set  aside  a  will; 
thus,  if  a  wife  by  her  virtues,  has  gained  such  an  ascendency 
over  her  husband,   so   riveted   his  affections,   that  her  good 

57— Wilber   v.    Wilber,    138    111.  134;  Cockerman  v.  Cockerman,  17 

446;    Purdy  v.  Hali,   134  111.  298;  III.  App.  605;  Beaubien  v.  Cicotte, 

Pooler  V.  Christman,  145  III.  405;  12  Mich.   486;    Dennison's  Appeal, 

Taylor   v.    Pegram,    151    111.    106;  29  Conn.  402;  Mooney  v.  Oleson,  22 

Nicewander  v.  Nicewander,  151  111.  Kan.  69 ;   27  Am.  &  Eng.  Ency.  of 

156;    Kaenders   v.    Montague,    180  Law,    505,    506,    and    cases    cited: 

111.  300;  Thompson  v.  Bennett,  194  Schouler    on    Wills,    section    243; 

111-  57.  Smith  v.  Henline,  174  111.  184;  In 

58 — Reynolds   v.   Adams,   90   111.  re  Shelly's  Estate,  28  Colo.  157. 


212  THE  LAW  OF  ESTATES. 

pleasure  is  a  law  to  him,  such  an  influence  can  never  be  a 
reason  for  impeaching  a  will  made  in  her  favor,  even  to  the 
exclusion  of  the  residue  of  the  family. ^9  Influence  the  result 
of  affection  merely  is  not  undue  influence,  within  the  meaning 
of  the  law;  inequality  or  unreasonableness  in  the  distribution 
of  property,  is  not  conclusive  of  undue  influeuce.*^*^  It 
will  be  noted,  from  all  the  cases,  where  undue  influence, 
without  fraud,  has  the  effect  to  avoid  the  will,  the  evidence  and 
circumstances  passed  upon  by  the  court,  deprived  the  testator 
or  testatrix  of  his  or  her  free  agency;  thus,  immoderate  per- 
severing, begging  importunities  and  flattery  of  a  wife,  who  will 
take  no  denial,  pressed  upon  an  old  and  feeble  man,  which 
may  be  better  imagined  than  described ;  or  any  vicious  control 
or  dominion  from  whatever  source,  resulting  in  violence,  ill- 
treatment,  threats  or  fear  of  displeasure,  or  any  misconduct 
on  the  part  of  those  who  receive  the  bounty  or  share  the  estate 
of  any  testator  or  testatrix,  will  not  be  sanctioned  or  tolerated 
by  the  courts.^^ 

279.  Trial  by  jury  haw  far  conclusive.  The  verdict  of  a 
jury  in  a  contested  will  case  in  chancery,  has  the  same  force 
and  effect,  as  a  verdict  at  law.^^  And  when  the  verdict  is  sanc- 
tioned by  the  court,  where  witnesses  testify  from  the  stand,  it  is 
entitled  to  great  weight.'^^ 

In  Egbers  v.  Eghers,^'^  two  trials  were  had,  and  the 
verdicts  of  both  juries  were  the  same.  The  court  in  its  final 
opinion  says :  While  it  may  appear  from  the  record  before  us 
that  the  proponents  made  out  the  stronger  case  upon  the  facts, 

59— Small    v.    Small,    4    Greenl.         61—1  Redfield  on  Wills,  196,  197 

220;  Bawnfield  v.  Bawnfield,  43  111.  and  case  cited  in  notes.     Thomp- 

148;  Rutherford  v.  Morris,  77  111.  son  v.  Bennett,  194  111.  57. 
397;   Burt  v.  Quisenberry,  132  111.         62 — Long  v.  Long,  107  111.  210; 

399.  Am.  Bible  Society  v.  Price,  115  111. 

60 — Nicewander   v.    Nicewander,  623;  Ring  v.  Lawless,  190  III.  531; 

151  111,  156;  Claussenius  v.  Clans-  Whipple    v.   Eddy,    161    111.    119; 

senius,  179   111.   545;     Webster    v.  Johnson  v.  Johnson,  187  111.  92. 
Yorty,    194    111.    408;    Francis    v.         63— Petefish  v.   Becker,   176  111. 

Wilkerson,  147  111.  370;   Compher  451. 
V.  Browning,  219  111.  429.  64—177  111.  86. 


CONTEST  OF  WILLS  IN  CHANCERY.         213 

it  must  be  considered,  that  the  jury  and  court  below  saw  and 
heard  the  witnesses  and  had  better  means  of  weighing  the 
testimony  than  we  have.  We  cannot,  upon  the  record,  say  the 
verdict  was  manifestly  wrong  or  against  the  evidence,  and 
while  we  might  have  been  better  satisfied,  from  the  evidence 
in  the  record,  with  a  different  verdict,  the  rule  of  this  court 
has  long  been,  not  to  interfere  with  the  verdict  in  such  cases. 
And  especially  should  this  rule  be  adhered  to  where  a  second 
trial  has  produced  the  same  result.^^  In  Schmidt  v.  Schmidt,^^ 
where  the  evidence  reviewed  by  the  court  was  against  the  clear 
preponderance  the  verdict  of  the  jury  was  set  aside,  the  court  tak- 
ing the  opportunity  to  say:  ''Jurors  are  often  inclined  to  disre- 
gard the  evidence  and  hunt  for  some  excuse  outside  of  the  evi- 
dence upon  which  to  set  aside  a  will  if  it  does  not  comport  with 
their  ideas  of  right  and  justice,  and  it  often  becomes  the  duty  of 
the  courts,  in  this  class  of  cases,  to  interfere  and  set  aside  their 
verdicts  for  that  reason.  "^''^ 

280.  The  costs  in  such  cases.  In  a  contested  will  ease,  the 
court  may,  in  the  exercise  of  a  sound  discretion,  distribute  the 
costs  of  the  defeated  party  among  them  pro  rata,  according 
to  their  interest  in  the  matter  in  controversy,  or  as  to  the  court 
seems  just  and  equitable.®^ 

281.  An  executor  cannot  in  general  be  held  individually. 

An  executor,  as  a  general  rule,  cannot  be  held  individually 
liable  for  costs  made  in  defense  to  a  proceeding  to  contest  the 
validity  of  the  will,  it  being  his  duty  to  defend.^^  But  the  rule 
is  not  inflexible,  the  proceeding  being  in  equity,  the  executor 

65— Hill  V.  Bahrns,  158  111.  314;  400;  Bradley  v.  Palmer,  193  111.  15, 

Howitt    V.    Estelle,    92    111.    218;  and  cases  cited  in  opinion  of  court. 

Green  v.  Green,  145  111.  264;   Mc-  68 — Otis  v.  Gardner,  105  111.  436; 

Common   v.    McCommon,    151    111.  Howe  v.  Hutchinson,  105  111.  501; 

428,  and  cases  cited  in  opinion.  Scliultze   v.    Houfes,    96    111.    335; 

66—201  111.  201.  Field  v.  Oppenstein,  98  111.  68. 

67 — Rutherford  v.  Morris,  77  111.  69 — Pingree  v.  Jones,  80  111.  177; 

397;    Freeman   v.    Easly,    117    111.  Shaw  v.  Camp,  56  HI.  App.  23. 
317;   Nieman  v.  Schnitka,  181  111. 


214 


THE  LAW  OF  ESTATES. 


luay  be  charged  if  he  acts  in  bad  faith,  or  if  he  is  personally 
interested,  and  defends  for  his  own  protection,  upon  principles 
applicable  in  other  proceedings  in  equity  J"  On  bill  to  contest 
the  validity  and  probate  of  a  will  the  executor  is  a  proper  party, 
and  may  be  liable  for  costs  which  may  be  adjudged  against  him 
in  certain  contingencies,  in  the  event  the  probate  is  set  aside  and 
the  will  declared  null  and  void."^ 

282.  Solicitor's  fees  allowed  executor.  Where  the  executor 
upon  contest  defends  the  will  in  good  faith,  and  out  of  proper 
motives,  for  the  purpose  of  carrying  out  the  wishes  of  the  tes- 
tator, he  is  entitled  to  an  allowance  for  reasonable  counsel  fees 
paid  therein  J  2 


70— Campbell  v.  Campbell,  130 
111.  466;  Bardell  v.  Brady,  172  111. 
423;  Shaw  v.  Camp,  56  111.  App. 
23. 

71— Shaw  V.  Moderwell,  104  IlL 


64;  Moj^er  v.  Swyggart,  125  111. 
262;  Church  v.  Eggleston,  3  Colo. 
Ct.  of  App.  239. 

72— Shaw  V.  Camp,  163  111.  148, 
and  cases  cited  touching  the  point 
in  the  opinion. 


CHAPTER  XII 


TRUSTS  AND  TRUSTEES 


Sec. 

283.  Testamentary   trusts   general- 

ly. 

284.  Who  may  be  trustees. 

285.  Married  women  may  be  trus- 

tees. 

286.  Married   woman's   liability. 

287.  Who   are   trustees   under   the 

law. 

288.  Trustees  defined. 

289.  Trustees  de  son  tort. 

290.  Executors,      administrat  o  r  s  , 

guardians   and   conservators 
to  whom  amenable. 

291.  Testamentary      trustees      are 

not  under  control  of  probate 
or   county   courts. 

292.  Equity    never    wants    for    a 
trustee. 

293.  The  rule  in  appointing  trus- 

tees. 

294.  What    property    may    be    the 

subject  of  the  trust. 

295.  The    same    person    appointed 

executor  and   trustee  under 
will. 

296.  Voluntary    or    express    trusts 

must  be  accepted. 


Sec. 

297.  Certain    trusts    must    be    in 

writing,  others  created  by 
construction,  implication  or 
operation  of  law  may  be 
proved  by  parol. 

298.  Resulting  trust. 

299.  Constructive  trust. 

300.  Trusts  by   implication  or  op- 

eration of  law. 

301.  Trusts  ex  vialeficio. 

302.  Spendthrift  trust. 

303.  Conveyance  to  uses.     Statute 

of  Uses. 

304.  When  the  statute  takes  effect 

and  executes  the  trust. 

305.  When    the    Statute    of    Uses 

does  not  execute  the  trust. 

306.  Title  of  personal  property  not 

affected  by  Statute  of  Uses. 

307.  Following  trust  fund. 

308.  Statute  of  Limitations. 

309.  Perpetuity. 

310.  Equitable  conversion. 

311.  Relation  of  creditors  and  re- 

mainder-men to  trusts. 

312.  Trust  will  not  be  defeated  if 

beneficiary  is  trustee  for 
himself  and  others. 


Sec.  283.  Testamentary  trusts  generally.  In  all  cases  where 
trusts  are  created  or  originate  by  will,  the  same  must  be  in 
writing,  signed  and  attested  according  to  the  statutory  require- 
ments in  force  where  the  will  is  made,  or  the  domicile  of  the 
testator  or  testatrix  is  claimed  or  fixed  by  operation  of  law. 
The  testator  or  testatrix  having  power  and  capacity  to  create 

215 


21G  THE  LAV/  OF  ESTATES. 

the  trust,  should  always  define  clearly  in  the  instrument  the 
object  and  subject  of  the  trust,  and  keep  within  the  bounds 
of  statutory  enactments  and  the  decisions  of  the  courts  relating- 
to  devises  and  bequests.  And  such  will,  to  be  effective  upon 
the  death  of  the  testator  or  testatrix,  must  be  proved  and 
admitted  to  probate  in  the  proper  court  of  probate  or  it  cannot 
be  used  as  a  declaration  and  proof  of  the  trusts  created  thereby. 
While  the  rule,  generally  speaking,  is  that  a  will  shall  be  pro- 
bated in  the  first  instance  at  the  testator's  domicile,  as  re- 
quired by  the  statute,  such  rule  is  subject  to  the  exception, 
which  is  almost  as  broad  as  the  rule  itself,  that  it  may  be  pro- 
bated in  any  county  in  any  state  where  the  testator  had  and 
left  assets,  particularly  real  estate.^ 

284.  Who  may  be  trustees.  It  may  be  stated  in  general 
terms,  that  whoever  is  capable  of  taking  the  title  or  beneficial 
interest  in  property  may  take  the  same  in  trust  for  others.^ 
Whatever  person  or  persons,  association  or  corporations 
are  capable  of  having  the  legal  title  or  beneficial  interest 
cast  upon  them  by  gift,  grant,  bequest,  descent,  or  operation  of 
law,  may  take  the  same  subject  to  a  trust,  and  they  will  become 
trustees.  But  it  does  not  follow  that  whoever  is  capable  of  tak- 
ing in  trust,  is  capable  of  performing  or  executing  it.  The  in- 
quiry, then,  is  not  so  much  who  may  take  the  trust,  as  it  is  who 
may  execute  and  perform  a  trust.  If  a  trust  is  cast  upon  a  person 
incapable  of  taking  or  executing  it,  courts  of  equity  will  execute 
the  trust  by  decree,  or  they  will  appoint  some  person  capable  of 
performing  the  requirements  of  the  trust.^  Thus  it  is 
said    by    Perry    (40)    the    Sovereign    may    sustain    the  char- 

1— Sec.   11,   Chapt.   148   "Wills."  minal    Transfer    Co.    v.    Winslow, 

Starr  &  Curtis  Annotated  Statutes  216  111.  166. 

of    Illinois,    Vol.    3,    p.    4040,    and  2— Hill  on  Trustees,  section  48; 

cases  cited:     Hurd's  R.   S.  of  111.  Perry   on    Trusts,   Vol.    1    (1889), 

1905,    same    section    and    chapter,  sec.  39. 

p.  2052;   23  Am.  &  Eng.  Ency.  of  3 — Lewin  on  Trusts,  27;  1  Perry 

Law  (2nd  ed.),  116;  In  re  Story's  on  Trusts  (1889),  sees.  39,  40,  41, 

Estate,  120  111.  244;   Chicago  Ter-  42. 


TRUSTS  AND  TRUSTEES.  217 

acter  of  trustee.  (41)  The  United  States,  and  each  of 
the  separate  states,  may  sustain  the  character  of  trustee. 
(42)  Corporations  of  every  description  may  take  and  hold 
estates,  as  trustees,  for  purposes  not  foreign  to  the  purpose  of 
their  own  existence ;  and  they  may  be  compelled  by  courts  of 
equity  to  carry  the  trusts  into  execution.  If  they  misapply  the 
trust  funds,  or  refuse  to  obey  the  decrees  of  the  court,  they 
may  be  enjoined,  or  removed  and  new  trustees  appointed.  (43) 
Corporations  are  the  creatures  of  the  law,  and  as  a  general  rule 
they  cannot  exercise  powers  not  given  to  them  by  their  char- 
ters or  acts  of  incorporation.  For  this  reason  they  cannot  act 
as  trustees  in  a  matter  in  which  they  have  no  interest,  or  in  a 
matter  that  is  inconsistent  with,  or  repugnant  to,  the  purposes 
for  which  they  were  created.  The  legislature  of  Illinois,  in  1887, 
passed  an  act  entitled,  "Administration  of  trusts  by  trust  com- 
panies," which  went  into  effect  July  1,  1887.  Chapter  32,  sec- 
tions 1-19.  Under  an  amendment  of  that  act  in  force  July  1, 
1889,  it  is  provided  by  section  2  (a)  :  "Whenever  application 
shall  be  made  to  any  court  in  this  state,  for  the  appointment 
of  any  receiver,  assignee,  guardian,  conservator,  executor,  ad- 
ministrator or  otherwise  it  shall  be  lawful  for  such  court  to 
appoint  any  such  corporation  as  such  trustee,  receiver,  assignee, 
guardian,  conservator,  executor  or  administrator:  Provided, 
any  such  appointment  as  guardian  or  conservator  shall  apply 
to  the  estate  only,  and  not  to  the  person."^ 

285.  Married  women  may  be  trustees.  Under  the  Roman  or 
civil  law,  married  women  could  alienate  their  property  and  dis- 
pose of  it  by  will.  By  the  common  law  of  England  they  were 
almost  entirely  incapacitated,  and  up  to  1872  in  the  state  of 
Illinois,  a  married  woman  executed  and  acknowledged  deeds, 
according  to  prescribed  formalities;  and  they  could  in 
general  convey  their  property  to  trustees,  by  deed  or  will,  and 

4— Starr  &  Curtis  Annotated  Vol.  1,  p.  1040;  Vol.  4,  p.  318,  and 
Statutes  of  Illinois,  with  Jones  &  cases  cited  under  section  of  stat- 
Addington's    Supplements   thereto,     utes  in  question.     Kurd's  R.  S.  of 

111.  1905,  p.  538,  et  seq. 


218  THE  LAW  OF  ESTATES. 

make  mortgages  of  their  property  with  power  of  sale.^ 
It  has  been  since  the  enactments  of  1872,  in  this  state, 
that  a  married  woman  has  been  considered  in  all  re- 
spects as  feme  sole  in  regard  to  her  ownership  of  real  and 
personal  property,  obtained  by  descent,  gift  or  purchase;  and 
the  issues,  income,  profits  and  proceeds  of  such  property ;  she 
also  holds  as  her  own,  that  which  she  acquires  by  her  trade, 
business,  labor  or  service  carried  on  or  performed  on  her  sep- 
arate account.  She  manages,  sells  and  conveys  her  property  to 
the  same  extent  and  in  the  same  manner,  that  the  husband  can 
property  belonging  to  him;  either  husband  or  wife  may  con- 
stitute each  other  their  agents  to  transact  his  or  her  business 
and  to  deal  with  his  or  her  property  by  power  of  attorney  or 
otherwise ;  the  restriction  being  placed  upon  each,  that  they 
or  either  of  them,  shall  not  convey  or  mortgage  their  respective 
real  estate,  except  each  join  in  the  deed  of  the  other."  Direct 
deed  hy  wife  to  husband  or  vice  versa  is  valid.'^  Married  women 
may  become  trustees  by  deed,  gift,  bequest,  appointment  or  by 
operation  of  law.* 

5— Young  V.  Gra£E,  28  111.  20.  In  Geison  v.  Heiderich,  104  111.  537 

that  case  the    rule    stated    in    2  Maxwell  v.  Maxwell,  109  111.  588 

Story's  Eq.  Jur.,  1399.  "The  sepa-  Kirkpatrick  v.  Clark,  132  111.  342 

rate    estate    of   the   wife   will,    in  Larson  v.  Ditto,  90  111.  App.  391 

equity,  be  held  liable  for  all  the  Smith   v.    Summers   Mfg.    Co.,    69 

debts,  charges,  incumbrances,  and  111.  App.  232;  Despain  v.  Wagner, 

other  engagements  which  she  does  163    111.    601. 

expressly  or  by  implication  charge  7 — Perry  on  Trusts,  section  48. 

thereon."      And    so    it    was    held,  8 — See   Section   1,    Chapter   148, 

where    the    wife    voluntarily    con-  "Wills."  Starr  &  Curtis  Annotated 

veys  real  estate,  which  she  holds  Statutes  of  Illinois,  with  Jones  & 

in   her   own   right,   by   a   deed   of  Addington's    Supplements   thereto, 

trust,  to  secure  a  debt  due  by  her  Vol.   3,  p.  4022;   "Vol.   4,  pp.   1283, 

husband,  equity  will  hold  it  liable,  1284,  and  cases  cited  under  section 

and  when  necessary  decree  a  sale,  of  statute  noted.     See  also  Walton 

This  was  the  law  before  the  stat-  v.    Follansbee,   165   111.    486;    God- 

ute  of  1872,  and  is  the  law  today  schalk    v.    Fullmer,    176    111.    66; 

in  a  similar  case.  Benson  v.  Dempster,  183  111.  304. 

Kurd's  R.  S.  of  111.,  1905,  same  See  Section  9,  Chapter  59,  "Frauds 

section  and  chapter,  p.  104.  and  Perjuries,"  Starr  &  Curtis  An- 

6— McClay  v.  Smith,  87  111.  Ill;  notated   Statutes   of   Illinois,   with 


TRUSTS  AND  TRUSTEES.  219 

286.  Married  woman's  liability.  Under  the  statutes  of  Illi- 
nois if  an  estate  comes  to  a  married  woman  in  any  way  charged 
with  a  trust,  her  coverture  cannot  be  successfully  pleaded.  But 
as  the  law  of  this  state  enables  a  married  woman  to  enter  into 
contract  relating  to  her  sole  and  separate  estate  only,  the  per- 
plexing question  may  arise,  as  to  how  far  she  can  bind  her- 
self, or  her  estate,  by  a  bond  to  execute  a  trust  in  property, 
the  beneficial  interest  in  which  belongs  to  another,  though  her 
sureties  in  such  case,  on  her  bond,  might  be  liable.  By  granting 
these  statutory  rights  to  married  women  they  become  liable, 
and  their  estates  as  well,  where  she  executes  a  bond  for  her 
husband,  or  joins  her  husband  or  others  in  executing  a  bond, 
promissory  note,  bill  of  exchange,  lease  or  other  instrument 
creating  a  liability ;  and  though  she  is  not  liable  under  the  stat- 
utes for  her  husband's  debts,  may  become  liable  in  many  ways, 
particularly  for  necessary  expenses  of  her  family  and  for  the 
care  and  education  of  her  children.^ 

287.  Who  are  trustees  under  the  law.  A  testamentary  execu- 
tor or  guardian  nominated  by  will,  or  appointed  by  the  courts 

Jones  &  Addington's  Supplements  See  also  sections  3,  18,  19,  chap- 
thereto.  Vol.  2,  p.  2021;  Vol.  4,  ter  30,  "Conveyances,"  Starr  & 
p.  647;  Vol.  5,  p.  270,  and  cases  Curtis  Statutes  of  Illinois,  with 
cited  under  section  of  statute  Jones  &  Addington's  Supplements 
noted.  Kurd's  R.  S.  of  111.  1905,  thereto.  Vol.  1,  pp.  916-926;  Vol.  4, 
same  section  and  chapter,  p.  1130.  p.  254,  and  cases  cited  under  sec- 
See  Section  3,  Chapter  3,  "Admin-  tions  of  statute  noted, 
istration  of  Estates,"  Starr  &  Cur-  Kurd's  R.  S.  of  111.  1905,  same 
tis  Annotated  Statutes  of  Illinois,  section  and  chapter,  pp.  464,  466. 
with  Jones  &  Addington's  Supple-  9 — Section  15,  chapter  68,  "Kus- 
ments  thereto,  Vol.  1,  p.  270;  band  and  Wife."  Starr  &  Curtis 
Section  9.  Chapter  68,  "Husband  Annotated  Statutes  of  Illinois, 
and  Wife,"  Starr  and  Curtis  Anno-  with  Jones  &  Addington's  Supple- 
tated  Statutes  of  Illinois,  with  ments  thereto.  Vol.  2,  pp.  2133. 
Jones  &  Addington's  Supplements  2134;  Vol.  4,  pp.  674,  675,  and  cases 
thereto,  Vol.  2,  pp.  2126  to  2132;  cited  under  section  of  statute 
Vol.  4,  p.  674;  Vol.  5,  p.  286,  and  noted.  Kurd's  R.  S.  of  111.,  1905, 
cases  cited  under  section  of  stat-  same  section  and  chapter,  p.  1148. 
ute  noted.  Kyman  v.  Karding,  162  III.  360; 

Kurd's  R.   S.  of  111.  1905,  same  Arnold  v.  Keil,  81  111.  App.  242. 
section  and  chapter,  p.  1147. 


220  THE  LAW  OF  ESTATES. 

as  such,  after  accepting  the  office,  and  qualifying  under  the  will 
and  the  provisions  of  the  statutes,  is  to  a  certain  extent  a  trus- 
tee; and,  will  be  treated  as  such  during  the  administration  of 
the  estate  in  which  he  or  she  is  appointed  by  all  courts  in  which 
they  may  appear  until  finally  discharged  from  such  duties  as 
the  office  imposes  by  a  proper  order  of  the  court  that  appoints 
them  and  directs  the  distribution  of  the  estate  in  their  hands. 
An  administrator  with  the  will  annexed,  will  also  be  treated  as 
a  trustee,  and  held  to  account  during  the  administration  of  an 
estate  in  his  hands;  and  generally  in  the  same  manner  and  to 
the  same  extent  as  an  executor  appointed  and  accepting  under 
a  will. 

288.  Trustees  defined.  Such  are  said  to  be  ''persons,  asso- 
ciations or  corporations  to  whom  property  is  legally  committed 
in  trust  to  be  applied  either  for  the  benefit  of  specified  individ- 
uals, or  public  uses. "  Another  definition  being :  "A  person  in 
whom  some  estate,  interest,  or  power  in  or  affecting  property 
of  any  description  is  vested  for  the  benefit  of  another. ' '  Again 
such  is  defined  as:  "An  obligation  upon  a  person  arising  out 
of  a  confidence  reposed  in  him  to  apply  property  faithfully 
and  according  to  such  confidence. "  Again:  '' A  trust  is  in  the 
nature  of  a  disposition  by  which  a  proprietor  transfers  to 
another  the  property  of  the  subject  intrusted,  not  that  it  should 
remain  with  him,  but  that  it  should  be  applied  to  certain  uses 
for  the  benefit  of  a  third  party,  "i*^ 

289.  Trustees  de  son  tort.  If  a  person  wrongfully  interferes 
with  the  assets  of  a  deceased  person,  he  may  become  an  admin- 
istrator or  executor  de  son  tort.  So,  if  a  person  by  mistake  or 
otherwise  assumes  the  character  of  trustee,  and  acts  as  such, 
when  the  office  does  not  belong  to  him,  he  thereby  becomes  a 
trustee  de  son  tort,  and  he  may  be  called  to  account  by  the 
cestui  que  trust  for  the  assets  received  under  the  color  of  the 
trust." 

10—1  Perry  on  Trusts  (1889),  11—1  Perry  on  Trusts  (1889) 
section  2.  265;   Penn  v.  Folger,   182  111.  76; 


TRUSTS  AND  TRUSTEES. 


221 


290.  Executors,  administrators,  guardians  and  conservators 
to  whom  amenable.  Under  the  statutes  of  Illinois,  the  execu- 
tor, administrator,  guardian  and  conservator,  are,  in  the  first 
instance,  creatures  of  the  probate  courts  and  to  those  courts  are 
accountable,  until  duly  discharged.^^ 

291.  Testamentary  trustees  are  not  under  control  of  county 
or  probate  courts.  A  court  of  general  chancery  jurisdiction  lias 
full  control  of  testamentary  trusts  and  trustees.  A  testamen- 
tary trustee  is  not  amenable  to  probate  and  county  courts ;  such 
come  under  the  jurisdiction  of  a  general  court  of  chancery.^ ^ 


Larrnan  v.  Knight,  140  111.  232; 
Gurn  V.  Richardson,  128  111.  178. 
In  Larman  v.  Knight,  supra,  a 
wife  after  the  sale  of  her  real 
estate  under  a  decree,  and  the  ex- 
piration of  the  time  of  redemption, 
obtained  from  the  purchaser  a  con- 
tract for  the  sale  of  the  certificate 
of  purchase  on  the  payment  of  a 
sum  of  money  by  a  day  named. 
Laboring  under  sickness,  and  in 
fact  upon  her  death-bed,  her  hus- 
band repeatedly  urged  her  to 
transfer  her  rights  to  him,  promis- 
ing that  he  would  make  the  pay- 
ment and  save  the  property  for 
her  children,  and  thereby  induced 
her  to  transfer  the  title  to  him. 
He  obtained  a  loan  on  the  prop- 
erty and  paid  the  sum  required  to 
perfect  the  title  in  him,  using 
some  of  the  wife's  money  to  do 
so.  Held,  that  the  law  would  hold 
him  as  trustee  of  the  property,  for 
the  use  of  his  wife's  children,  un- 
der a  bill  for  accounting  by  the 
children.  See  Hill  on  Trustees 
(4th  Am.  ed.)  p.  234;  2  Pomeroy's 
Eq.  Jur.,  sec.  1055;  Perry  on 
Trusts,  sec.  171;  Williams  v.  Free- 


land,  29  N.  J.  417;  Brison  v.  Pri- 
son, 75  Cal.  529;  Wood  v.  Rabe, 
96  N.  Y.  426;  Davis  v.  Stromberg, 
163  111.  557,  and  cases  in  that 
opinion,  discussing  the  doctrine  of 
trusts  ex  male/icio.  See  also, 
Wright  V.  Gay,  101  111.  241;  2 
Washburn  on  Real  Property  (4th 
ed.),  482;  Allen  v.  Jackson,  122  111. 
567;  Brophy  v.  Lawler,  107  111. 
284;  Fischbeck  v.  Gross,  111  111. 
208;  Henschel  v.  Mamero,  120  111. 
662. 

12— Section  112,  Chapter  3,  "Ad- 
ministration Act."  Starr  &  Curtis 
Annotated  Statutes  of  Illinois, 
with  Jones  &  Addington's  Supple- 
ments thereto.  Vol.  1,  p.  336;  Vol. 
4,  p.  43;  Vol.  5,  p.  20,  and  cases 
cited  under  section  of  statute 
noted.  Hurd's  R.  S.  of  111.  1906, 
same  section  and  chapter,  p.  123. 
See  also,  Penn  v.  Folger,  182,  95; 
People  V,  Lanham,  189  111.  340; 
Marshall  v.  Coleman,  187  111.  569; 
People  V.  Kohlsaat,  168  111.  38; 
Ridgley  v.  People,  163  111.  115; 
Solomon  v.  Holman,  72  111.  App. 
353. 

13— Dlngman  v.  Beal,  213  111. 
238. 


222  THE  LAW  OF  ESTATES. 

292.  Equity  never  wants  for  a  trustee.  It  is  a  rule  that 
admits  of  no  exception,  that  equity  never  wants  for  a  trustee.^* 
Or,  in  other  words,  if  a  trust  is  once  properly  created,  and 
it  becomes  necessary  to  operate  the  same,  the  incompetency, 
disability,  death,  or  non-appointment  of  a  trustee  will 
not  defeat  the  trust.^^  Thus,  if  property  has  been  bequeathed  in 
trust,  and  there  is  no  trustee,  or  a  trustee  is  nominated  and  can- 
not act  on  account  of  disabilities  preventing  the  acceptance  of 
the  trust,  or  one  who  is  dead,  or  refuses  to  take,  is  appointed, 
the  chancery  court  will  decree  the  execution  of  the  trust  by 
the  personal  representatives,  if  it  is  personal  property,  and  by 
the  heirs  and  devisees,  if  it  is  real  estate.  Property  once  charged 
with  a  valid  trust  will  be  followed  in  equity  into  whosoever 
hands  it  comes,  and  such  will  be  charged  with  the  execution  of 
the  trust,  unless  he  or  she  is  a  purchaser  for  value,  and  without 
notice.  The  holder  of  the  legal  title  and  the  absolute  interest 
in  property,  may  convert  himself  into  a  trustee  b}^  making  a 
valid  declaration  of  trust  upon  good  consideration ;  or  if  he 
conveyed  the  property  by  some  conveyance  which  was  inop- 
erative in  law,  equity  will  hold  him  to  be  a  trustee ;  as  if  a  man 
conveys  property  directly  to  his  wife,  a  transaction  inoperative 
in  most  of  the  states,  equity  will  uphold  the  act  and  decree  the 
husband  to  be  a  trustee.i'^  ''Equity  will  not  suffer  a  wrong  to 
be  without  remedy."  The  principle  expressed  by  this  maxim 
is  indeed,  the  foundation  of  equitable  jurisprudence,  because 
equity  jurisprudence  had  its  rise  in  the  inability  of  the  common 
law  courts  to  meet  the  requirements  of  justice.^^  Equity  takes 
jurisdiction  particularly  when  the  donee  has  failed  to  act  under 
a  power  in  trust  ;^^  and  will  reform  trusts.^^  Courts  of  equity 
will  not  allow  a  clear  trust  to  fail  for  want  of  a  trustee ;  nor  will 

14 — French    v.    Northern    Trust     Equity,  3rd  ed.,  p.  53;  1  Pomeroy's 

Co.,  197  111.  30.  Eq.,  sec.  423. 

15— Gillispie  v.  Smith,  29  111.  473.         18—1    Pomeroy's    Eq.,    2nd    ed., 

io     -,  T^  r^       X     ..r>^,^s  ^ecs.  411,  412,  post  1221. 

16— 1  Perry  on  Trusts  (1889)  38.         -,„     t^.     ,,       ,         t.  •     .  , 

19 — Bispham  s       Principles       of 

17— Bispham's      Principles      of     Equity,  2nd  ed.,  53,  58;  Story's  Eq. 

641. 


TRUSTS  AND  TRUSTEES.  223 

they  alloM'  a  trust  to  fail  by  reason  of  any  act  or  omission  of  the 
trustee.-"  A  trustee  must  defend  and  protect  the  title  he  holds ; 
also  he  must  perform  all  the  duties  of  a  holder  of  the  legal  title.^i 
Trustees  cannot  delegate  their  powers  and  duties;  and  where 
it  is  doubtful  what  should  be  done,  it  is  the  duty  of  the  trustee 
to  go  to  court ;  it  will  imply  a  power  or  trust  and  put  itself  in 
the  place  of  a  trustee,  for  the  party  beneficially  interested,  or 
the  cestui  que  trust. 22 

293.  The  rule  in  appointing  trustees.  First :  The  court  will 
have  regard  to  the  wishes  of  the  persons  by  whom  the  trust  has 
been  created,  if  expressed  in  the  instrument  creating  the  trust 
or  clearly  to  be  collected  from  it.  Second :  The  court  will  not 
appoint  a  person  to  be  trustee  with  a  view  to  the  interest  of  some 
of  the  persons  interested  under  the  trust,  in  opposition  either 
to  the  wishes  of  the  testator  or  testatrix,  or  to  the  interests  of 
other  of  the  cestui  que  trust.  Everj^  trustee  is  in  duty  bound 
to  look  after  the  interests  of  all,  and  not  of  any  particular  mem- 
ber or  class  of  members  of  his  cestui  que  trust.  Third:  The 
court  in  appointing  a  trustee,  will  have  regard  to  the  question 
whether  the  appointment  will  promote  or  impede  the  execution 
of  the  trust ;  for  the  purpose  of  the  appointment  is,  that  the 
trust  may  be  better  carried  into  execution.-^ 

294.  What  property  may  be  the  subject  of  the  trust.  Every 
kind  of  valuable  property,  both  real  and  personal,  that  can  be 
issigned  at  law  may  be  the  subject-matter  of  a  trust.  Every 
itind  of  vested  right  which  the  law  recognizes  as  a  valuable  may 
V)e  transferred  in  trust,  as  a  receipt  for  medicine,  the  copyright 
of  a  book,  a  patent  right,  a  trade  secret,  or  growing  crops.^-*  As 
a  general  rule,  equity  follows  the  law,  and  all  persons  who  are 

20—1   Perry  on  Trusts,  5th  ed.,  sees.   402,  408,  473,  47G;    White  v. 

^ecs.  248,  249;    Gillispie  v.  Smith,  Sherman,  168  111.  589. 

29  111.  473.  23—1    Perry    on    Trusts    (1889) 

21 — 1  Perry  on  Trusts,  5th  ed.,  sec.  39. 

sees.  326,  328.  24—1  Perry  on  Trusts,  sees.  67, 

22—2  Perry  on  Trusts,  5th  ed.,  68, 


224  THE  LAW  OF  ESTATES. 

capable  of  taking  the  legal  title  to  property  may  take  the  equit- 
able title  as  cestui  que  trust  through  the  medium  of  a  trustee. 

295.  The  same  person  appointed  executor  and  trustee  under 
will.  The  same  person  is  often  named  executor  and  trustee 
under  a  will  in  such  a  manner  that  he  may  accept  one  office  and 
decline  the  other.  As  if  a  person  is  appointed  executor,  and 
as  executor  is  to  act  as  trustee ;  in  such  case  the  probate  of  the 
will,  and  qualification  as  executor,  will  be  an  acceptance  of  the 
trust.  But  if  from  the  will  it  appears  that  the  testator  or  testa- 
trix intended  to  give  the  trustee  a  distinct  and  independent 
character,  probate  of  the  will  by  the  executor  will  not  make  him 
trustee,  unless  he  accept  the  trust  and  qualify  himself  according 
to  law.  If  the  trust  is  given  to  one  named,  and  the  same  per- 
son is  afterwards  appointed  executor,  the  trust  is  not  annexed 
to  the  office  of  executor.  If,  by  the  terms  of  the  will,  the  execu- 
tor as  executor  is  to  keep  the  estate,  or  any  portion  of  it,  in 
his  hands,  and  is  to  deal  with  it  as  a  trustee,  his  bond  will  be 
held  as  security  for  the  faithful  performance  of  his  duties, 
though  such  duties  are  much  larger  and  different  from  those 
of  an  ordinary  executor.  If,  however,  the  will  contemplates 
that  the  executor,  as  such,  is  to  perform  only  the  ordinary 
duties  of  an  executor,  and  that  when  the  estate  is  settled  by 
him,  another  duty  is  to  arise  to  be  performed,  either  by  him  or 
by  another,  then  the  bond  of  the  executor  is  not  security  for 
those  further  duties;  but  the  person  who  is  to  perform  them 
must  accept  the  office  and  give  a  bond  for  their  per- 
formance.25  And  the  same  author  in  the  section  re- 
ferred to,  says:  "In  jurisdictions  where  executors  and 
trustees  are  required  to  qualify  and  give  bonds,  it  has 
been  held,  that  an  executor,  who  is  also  a  trustee  under  the  will, 
cannot  be  considered  as  holding  any  part  of  the  assets  as  trus- 
tee, until  he  has  settled  his  account  at  the  probate  court  as 
executor,  and  has  been  credited  with  the  amount  as  executor 
with  which  he  is  afterwards  to  be  charged  as  trustee."     In 

25 — 1   Perry   on   Trusts     (1889)     sec.    263. 


TRUSTS  AND  TRUSTEES.  225 

other  cases  it  has  been  held,  that  the  change  of  property,  from 
the  executor  to  the  trustee,  where  they  are  the  same  persons, 
may  be  shown  by  some  declaration  or  authoritative  and  notorious 
act  on  the  part  of  the  trustee,  showing  a  change  in  the  manner 
in  which  the  property  is  held.^*^  The  authorities  are  quite  uniform 
in  holding  to  the  rule,  that  where  the  executor  thus  acts  in  a 
double  capacity  he  must  account  in  his  capacity  as  executor,  un- 
til he  has  transferred  his  account  tovliimself  as  trustee,  and  given 
a  bond  as  trustee.  This  is  the  general  rule,  but  if  the  will  is  silent 
on  the  subject  or  requires  bond  to  be  given,  in  the  absence  of  a 
statute  granting  the  probate  courts  control  in  the  first  instance 
over  testamentary  trustees,  it  would  seem  to  be  the  law  in  Illi- 
nois, that  the  probate  courts  and  county  courts  having  probate 
jurisdiction,  have  control  of  the  executor  only  as  such,  and  his 
administration  and  accounting  in  the  particular  estate ;  but  the 
trustee,  even  though  it  be  the  same  person,  in  case  the  trust 
is  abused,  is  amenable  to  courts  of  equity,  who  will  restrain 
and  compel  a  proper  application  of  the  trust  estate.^^ 
Where  persons  act  in  the  dual  capacity  of  executors 
and  trustees,  and  in  law  are  distinguished  as  separate 
persons  in  their  respective  capacities,  it  is  their  duty  as  trus- 
tees to  collect  and  receive  what  might  become  due  to  them  as 
such,  without  loss  or  diminution  by  their  neglect;  and  to  that 
end  and  purpose  they  should  keep  a  watchful  eye  on  the  sources 
of  the  funds,  which  generally  arise  during  the  administration 
of  estates.  The  personal  estate  vesting  in  executors  or  adminis- 
trators the  trustee  can  reach  such  only  through  such  represent- 
atives when  the  estate  is  distributed  in  the  courts  of  probate. 
It  is  also  the  duty  of  the  executor  or  administrator  to  collect 
the  claims  and  convert  the  property  into  money  as  the  probate 
court  may  direct  for  the  purpose  of  paying  debts  and  charges 
against  the  particular  estate  administered.     It  is  further  the 

26— Daggatt  v.  White,  128  Mass.  511;  Daly  v.  Wilkier,  111  111.  383; 

398;  Croucher  v.  Dillon,  133  Mass.  Leman  v.   Sherman,   117  111.   657; 

91;  Carruth  v.  Carruth,  148  Mass.  Jones  v.  Jones,  124  111.  264;  Ding- 

431.  man  v.  Beal,  213  111.  238. 

27— Estate   of  Whitman,   22   111. 
15 


226  THE  LAW  OF  ESTATES. 

duty  of  such  representatives  to  render  a  just  and  true  account 
of  their  doings  to  the  court  of  probate  as  required  by  law ;  such 
courts  having  full  power  and  jurisdiction  to  call  the  represent- 
atives of  an  estate  to  account,  and  charge  such  with  all  losses 
accruing  through  their  neglect  or  raisconduct.^s  "While  the  con- 
duct of  parties  as  executors  or  administrators  as  well  as  trustees, 
may  be  a  proper  subject  of  inquiry  in  determining  as  to  their  re- 
moval, the  courts  of  probate  have  exclusive  jurisdiction  of  their 
accounts  as  executors  and  administrators,  unless  in  a  proper 
case,  that  court  should  be  superseded  by  the  circuit  court;  and 
then  such  latter  court  takes  jurisdiction  of  such  matter,  under 
its  general  chancery  powers.^^ 

In  Dingman  v.  Beat,  it  is  held:  Where  a  will  devised 
a  distinct  part  of  the  real  estate  to  the  "executor"  in  trust, 
with  directions  in  the  will  to  sell  the  same  and  reinvest  the  pro- 
ceeds in  trust  for  specific  purposes,  a  sale  made  by  him  in  pur- 
suance of  the  directions  in  the  will,  is  a  sale  in  his  capacity  as 
trustee,  and  no  bond  by  him  is  necessary  to  the  validity  of  the 
sale,  where  none  is  required  by  the  terms  of  the  will.^** 
Under  the  statute  of  Illinois,  as  it  now  stands,  where  a  will 
makes  the  same  person  an  executor  and  trustee,  the  executor's 
bond  cannot  be  construed  for  the  faithful  performance  of  the 
duties  belonging  to  the  trustee.^^  Where  it  is  required  or  the 
will  is  silent  on  the  subject,  a  separate  bond  as  trustee  must 
be  given/' - 

296.  Voluntary  or  express  trusts  must  be  accepted.  In  vol- 
untary or  express  trusts,  uo  title  vests  in  the  proposed  trustee, 

28— Waterman  v.   Alden,   42   111.  32— People  v.   Hoffman,   182   111. 

App.   294.  405;   Hinds  v.  Hinds,  85  Ind.  312; 

29 — Waterman  v.  Alden,  144  111.  Woerner  on  American  Law  of  Ad- 

105.  ministration,  2nd  ed.,  260;   People 

30 — Gammon    v.    Gammon,    153  v.   Petrie,   191   111.   497;    28  Am.   & 

111.    41;    213    111.    238.  Eng.   Ency.  of  Law,   2nd  ed.,   975, 

31 — Sections  7  and  8,  chapter  3,  and  cases  cited  in  notes.    Daggatt 

"Administration."     Starr  &  Curtis  v.   White,   128  Mass.  312;    Hale  v. 

Annotated     Statutes     of     Illinois,  Hale,  146  111.   227;    Gavin  v.   Cur- 

Vol.  1,  pp.  271,  272;   Hurd's  R.  S.  tiss,  171  111.  640. 
of   111.,    1905,   p.   105;    Dingman  v. 
Beal,  213  111.  238. 


TRUSTS  AND  TRUSTEES.  227 

by  whatever  instrument  it  is  attempted  to  be  transferred, 
unless  the  person  named  as  trustee  expressly  or  by  implication 
accepts  the  office,  or  in  some  way  assumes  its  duties  and  lia- 
bilities.33  Such  a  refusal  to  act  does  not  invalidate  the  deed, 
will  or  other  instrument ;  it  only  relieves  the  trustee,  and  enables 
the  court  to  appoint  others.^*  When  a  trust  is  created  by  impli- 
cation, result,  or  construction  of  law  from  the  acts  of  the  par- 
ties, they  will  be  held  by  the  law  to  the  performance  of  the  trust, 
whether  they  are  willing  or  unwilling  to  accept  the  situation. 
This  is  the  universal  rule  of  equity,  as  the  result  or  construction 
to  be  put  upon  the  actions  and  conduct  of  the  party  relating  to 
the  property  of  others  in  his  care,  control  or  management.  Gen- 
erally where  trusts  are  created  by  will,  and  vest  in  the  executor 
accepting  and  qualifying,  he  thereby  accepts  the  trust  or  trusts 
in  the  will  created  and  is  estopped  from  denying  the  grantor's 
title.^^  Whoever  takes  property  under  a  will,  takes  it  in  the 
character  impressed  upon  it  by  the  testator.^^ 

297.  Certain  trusts  must  be  in  writing — others  created  by 
construction  or  operation  of  law,  may  be  established  by  parol 
proof.  The  statute  of  Illinois  provides:  "All  declarations  or 
creations  of  trusts  or  confidences  of  any  lands,  tenements  or 
hereditaments,  shall  be  manifested  and  proved  by  some  writing 
signed  by  the  party  who  is  by  law  enabled  to  declare  such 
trust,  or  by  his  last  will  in  writing ;  or  else  they  shall  be  utterly 
void  and  of  no  effect;  Provided,  that  resulting  trust  or  trusts 
created  by  construction,  implication  or  operation  of  law,  need 
not  be  in  writing,  and  the  same  may  be  proved  by  parol.  "^'^ 

33— Cooper    v.    McClun,    IG    111.  181  111.  182;  Burbach  v.  Burbach, 

435.  217  111.  547. 

34— Nicoll  V.  Miller,  37  111.  387;  37— See    section    9,    chapter    59, 

Nicol  V.  Ogden,  29  111.  323.  "Frauds  and  Perjuries."     Starr  & 

35— Guilfoil   V.   Arthur,   158   111.  Curtis  Annotated  Statutes  of  Uli- 

600.  nois,    with    Jones    &    Addington's 

36 — Rankiu    v.    Rankin,    36    111.  Supplements    thereto.    Vol.    2,    p. 

293;    In    re    Corrington's    Estate,  2021;  Vol.  4,  pp.  647,  648;  Vol.  5, 

124    111.    363;    Crerar  v.   Williams,  p.  270,  and  cases  cited  in  each  vol- 

145   111.   625;   Robinson  v.  Botkin,  ume     under     section     of     statute 


228  THE  LAW  OF  ESTATES. 

This  statute  passed  in  1833,  has  remained  without  change  since 
then.  Express  trusts  must  be  in  writing,  but  no  form  of  words 
are  necessary.^^  The  declaration  of  trust  may  be  by  letter  to 
a  third  party .^^  Or  by  a  memoranda.^'^  Or  by  a  written  promise 
to  declare  a  trust."  Or  by  answer  in  chancery.^^  Qj.  y^y  ^ 
printed  pamphlet.'*^  Or  by  an  affidavit.^*  Or  it  may  be  by  a 
deposition  of  the  trustee,  taken  and  read  in  the  very  cause  in 
which  the  trust  is  sought  to  be  proved  and  established.^^  In 
the  case  of  Phillips  v.  Smith  Park  Commissioners  it 
is  held:'**'  Under  the  Statute  of  Frauds,  a  conveyance,  ab- 
solute on  its  face,  can  not  be  shown  to  have  been  made  iu 
trust  for  another  by  parol  evidence.  That  can  only  be  proved 
by  some  writing  signed  by  a  person  authorized  to  declare  a 
trust.  The  trust  may  be  manifested  by  a  writing  separate  from 
the  deed,  showing  an  intention  that  the  conveyance  shall  be  in 
trust.  If  the  grantee  of  a  husband,  while  holding  the  title  to 
the  land  conveyed,  makes  a  declaration  that  he  holds  it  in  trust 
for  the  grantor's  wife,  by  letter,  affidavit,  answer  to  a  bill  in 
chancery,  or  even  by  deposition,  it  may  be  binding  on  him,  and 
be  sufficient  to  show,  in  writing,  a  trust  in  her  favor.^"  If  there 
be  written  evidence  of  the  existence  of  the  trust,  the  danger  of 

noted.     Kurd's  R.   S.   of  111.  1905,  525;    Reid    v.   Reid,    12    Rich.    Eq. 

same  section  and  chapter,  p.  1103.  40  S.  C.  L.  Eq.  213;   Olcot  v.  By- 

38—2   Washburn   on  Real  Prop-  num,  17  Wall.  44. 

erty,    507;    Brown    on    Statute   of  46—119  111.  626. 

Frauds,  99.  47 — And    the   same   doctrine   as 

39 — Kingsbury   v.    Burnside,    58  held    in    Phillips    v.    South    Park 

111.   310;    More  v.   Pickett,   62   111.  Commissioners,  supra  (46),  is  held 

158.  or     approved     in     the     following 

40 — Raybold  v.  Raybold,  20  Pa.  cases:     White  v.  Cannon,  125  111. 

St.  328.  412;  Walton  v.  Fallansbee,  165  III. 

41 — Bellamy    v.    Burrows,    Talb.  486;  Godschalk  v.  Fulmer,  176  111. 

981.  66;    Benson    v.    Demster,    183    III. 

42— McLaurie  v.  Partlow,  53  111.  304;    Dicken  v.  McKinley,  163  IU. 

240.  326;    White   v.   Ross.    IGO    111.    69; 

43— Barren  v.  Joy,  16  Mass.  221.  Kellogg   v.    Pedicord,    181    111.    30; 

44 — Barkworth      v.      Young,      4  Keith  v.  Miller,  174  111.  74;  Kings- 
Drew,  1.  bury  V.  Burnside,  58  111.  310. 

45 — Penney    v.    Fallows,    15    Vt. 


TRUSTS  AND  TRUSTEES.  229 

parol  declarations,  against  which  the  statute  was  directed,  is 
effectually  removed.^*  That  case  was  decided  by  the  Master 
of  the  Rolls  in  1798,  when  construing  the  seventh  section  of  the 
English  statute  respecting  trusts,  similar  to  section  nine  of  the 
Illinois  statute  quoted  above.  The  master  adopted  a  letter  as  a 
clear  declaration  of  trust  by  which  he  held  there  was  a  clear 
evidence  in  writing  of  a  trust.  Again  in  1800^^  the 
Lord  Chancellor  relating  to  the  adoption  of  a  letter  as  evidence 
of  a  declaration  of  a  trust,  said:  It  is  not  necessary  that  it 
should  be  a  declaration,  as  a  writing  signed  by  a  party  may  be 
evidence  of  a  trust  admitted  in  that  writing.  The  important 
question  under  all  the  decisions,  has  always  been,  was  there 
evidence  in  writing  manifesting  and  proving  the  existence  of  a 
trust,  which  may  be  applied  to  wills  or  other  documents.  In  the 
construction  of  written  instruments  courts  will  endeavor,  in  all 
eases,  to  place  themselves  in  the  position  of  the  contracting 
parties  in  the  sense  intended  by  the  instrument  construed.^^ 
Where  there  is  an  express  trust,  there  cannot  be  a  resulting 
trust.  5^ 

298.  Resulting  trust.  The  doctrine  of  resulting  trusts  is 
stated  by  Perry  on  Trusts,  as  foUows:^^  "Where  upon 
a  purchase  of  property,  the  conveyance  of  the  legal  title 
is  taken  in  the  name  of  one  person,  while  the  consideration  is 
given  or  paid  by  another,  the  parties  being  strangers  to  each 
other,  a  resulting  trust  immediately  arises  from  the  transac- 
tion, and  the  person  named  in  the  conveyance  will  be  a  trustee 
for  the  party  from  whom  the  consideration  proceeds."  This 
doctrine  has  been  repeatedly  applied  in  Illinois.^^  WJiere  a  con- 
fidential agent  was  employed  to  examine  title  to  land,  with  a  view 
of  correcting  defects  therein,  and  to  assist  his  employer  in  aequir- 

48 — Lewin  on  Trusts,  63;  Foster  51 — Stevenson    v.    Crapnell,    114 

V,  Hale,  3  Ves.  Jr.  308.  111.  19;  Kingsbury  v.  Burnside,  58 

49—5  Ves.  308.  111.  310;  Godschalk  v.  Fulmer,  176 

50— Mosher    v.    Funk,    194    111.  111.  66. 

354;    Kann   Moll   v.    Gardner,   214  52— Sec.  126   (1889  ed.). 

Ill-  248.  53— Vallette  v.   Tedens,   122  111. 

607. 


230  THE  LAW  OF  ESTATES. 

ing  title  to  adjacent  lands,  and,  as  such  agent,  was  entrusted  with 
his  principal's  abstracts  of  title,  and  received  information  to  aid 
him  in  procuring  the  title,  and,  while  so  acting,  acquires  the 
title  in  his  own  name,  in  violation  of  his  duty,  he  will  in  equity 
be  held  to  have  acquired  such  title  in  trust  for  his  principal. 
So  where  property  is  purchased  by  a  syndicate,  and  is  con- 
veyed for  purposes  of  convenience  to  designated  party,  such 
will  be  treated  as  a  trustee  for  the  syndicate.^"*  And 
where  a  guardian  invests  money  of  his  ward  in  the  pur- 
chase of  lands  and  takes  title  to  himself,  there  is  a  resulting 
trust,  and  in  such  case  the  ward  may  follow  the  money  into 
the  lands  and  convey  it  as  a  trust  estate.^^  A  resulting  trust 
does  not  grow  out  of  the  contract  of  parties,  but  is  treated  as 
an  implication  of  law  arising  where  land  has  been  purchased  with 
the  money  of  one  and  the  deed  made  to  another. ^^  In  such 
case,  the  person  whose  money  pays  for  the  land  may  follow 
the  title  to  the  land,  and  treat  the  holder  of  the  legal  title  as 
a  trustee,  and  compel,  in  equity,  a  conveyance.^^  It  is  necessary, 
however,  to  a  trust  of  this  kind,  that  the  funds  be  advanced  or 
invested  at  the  time  the  purchase  is  made ;  as  it  is  not  possible 
to  raise  a  trust  by  the  subsequent  application  of  the  money 
of  a  third  person  in  satisfaction  of  the  unpaid  purchase  money.^^ 
But  the  rule  established  in  this  state  is  to  the  effect,  that  a  result- 

54 — Frankenstein    v.    North,    79  Biggins  v.   Biggins,   153    111.  211 

111.  App.  677;   Wallace  v.  Carpen-  Dorman  v.  Dorman,  187   111.  158 

ter,  85  111.  590.  Monson  v.   Hutchin,   194  111.  434 

55— Rice  v.  Rice,  108  111.  199.  Pool    v.     Phillips,     167    111.  439 

56— Williams   v.   Brown,    14    111.  Pickler   v.    Pickler,    180    111.  173 

200.  Smith    v.    Willard,    174    111.  542 

57— Sheldon  v.  Harding,  44  111.  Crone  v.  Crone,  180  111.  603;  Dwy» 


68;  McDonald  v.  Stow,  109  111.  40 
Scheerer  v.  Scheerer,  109  111.  11 
Fischbeck  v.  Gross,  112  111.  208 
Harris  v.  Mclntyre,  118  111.  275 
Donlin  v.  Bradley,  119  111.  412 
Henckel  v.  Mamero,  120  111.  660 
Reynolds  v.  Summer,  126  111.  58 


er  V.  O'Connor,  200  111.  54;  Crouch' 
er  V.  Croucher,  203  111.  530. 

58— Reed  v.  Reed,  135  111.  482; 
Pickler  v.  Pickler,  180  111.  173; 
Pain  V.  Farson,  179  111.  194;  De- 
vine  V.  Devine,  180  111.  451;  Dick 
V.  Dick,  172  111.  580;  Bank  v.  Bees- 
ley,  159  111.  125. 


TRUSTS  AND  TRUSTEES.  231 

ing  trust  will  not  be  enforced  after  an  unreasonable  delay  in 
seeking  their  enforcement,  unless  there  is  shown  an  equitable 
excuse  for  the  delay. ^^ 

299.  Constructive  trusts.  May  be  proved  and  established 
by  parol;  such  a  trust  is  well  defined  in  Fope  v.  Dapray,^^ 
the  doctrine  is  one  that  arises,  where  a  person  clothed 
with  some  fiduciary  character,  by  fraud  or  otherwise  gains 
something  for  himself.^^  It  is  further  defined  and  applied,  where 
"a  person  obtains  the  legal  title  to  property  by  virtue  of  a  con- 
fidential relation  and  influence,  under  such  circumstances  that  he 
ought  not,  according  to  the  rules  of  equity  and  good  conscience 
to  hold  and  enjoy  the  beneficial  interests  of  the  property;" 
courts  of  equity,  in  order  to  administer  complete  justice  be- 
tween the  parties,  will  raise  a  trust,  by  construction,  out  of 
such  circumstances  or  relations,  and  this  trust  they  will  fasten 
upon  the  conscience  of  the  offending  party  and  will  convert 
him  into  a  trustee  of  the  legal  title,  and  order  him  to  hold  it, 
or  execute  the  trust  in  such  manner  as  to  protect  the  rights 
of  the  defrauded  party  and  promote  the  safety  and  interests 
of  society.^2  This  rule  has  been  quoted  with  approval  and  ap- 
plied in  the  cases  of  Beach  v.  Dyer,  and  Allen  v.  Jackson.^^  As  a 
general  rule  one  of  two  elements  is  necessary  on  which  to 
base  or  establish  a  constructive  trust.  There  must  be  some 
element  of  fraud,  either  positive  or  constructive,  which  existed 
at  the  time  of  the  transaction  and  which  influenced  the  cestui 
que  trust,  or  there  must  exist  a  confidential  relation  and  influ- 
ence, by  virtue  of  which  one  has  obtained  the  legal  title  to 
property  which  he  ought  not,  according  to  the  rules  of  equity 
and  good  conscience,  to  hold  and  enjoy.  The  rule  is  laid  down 
in  Perry  on  Trusts,  as  follows:^*  "Constructive  trusts 
may  be  divided  into  three  classes,  to  be  determined  according 

59 — Harris  v.  Mclntyre,  US  111.         61 — Perry    on    Trusts,    Sec.    27; 
275;   Mayfield  v.  Forsyth,  164  111.     Reed  v.  Reed,  135  111.  482. 
36.  62— Perry  on  Trusts,  Sec.  166. 

60—176  111.  478.  63—93  111.  295;   122  111.  567. 

64 — Perry  on  Trusts,  Sec.  168. 


232  THE  LAW  OF  ESTATES. 

to  the  circumstances  under  which  they  arise :  First,  trusts  that 
arise  from  actual  fraud  practiced  by  one  man  upon  another. 
Second,  trusts  that  arise  from  constructive  fraud.  In  this, 
class  the  conduct  may  not  be  actually  tainted  with  moral  fraud 
or  evil  intention,  but  it  may  be  contrary  to  some  rule  estab- 
lished by  public  policy,  for  the  protection  of  society.  Thus,  a 
purchase  made  by  a  guardian  of  his  ward,  or  by  a  trustee  of 
his  cestui  que  trust,  or  by  an  attorney  of  his  client,  may  be  in 
good  faith  and  as  beneficial  to  all  parties  as  any  other  trans- 
action in  life,  and  yet  the  inconvenience  and  danger  of  allow- 
ing contracts  to  be  entered  into  by  parties  holding  such  rela- 
tions to  each  other  are  so  great  that  courts  of  equity  construe 
such  contracts  prima  facie  to  be  fraudulent,  and  they  construe 
a  trust  to  arise  from  them.  Third,  trusts  that  arise  from 
some  equitable  principle  independent  of  the  existence  of  any 
fraud,  as  where  an  estate  has  been  purchased  and  the  consid- 
eration money  paid  but  the  deed  is  not  taken,  equity  will  raise 
a  trust,  by  construction,  for  the  purchaser."  The  rule  is  also 
well  established,  that  courts  of  equity  carefully  scrutinize  con- 
tracts between  parent  and  children,  by  which  the  property  of 
the  parent  is  conveyed  to  children.  The  position  and  influence 
of  a  parent  over  a  child  are  so  controlling  that  the  transaction 
should  be  carefully  examined;  and,  sales  by  child  to  parent 
must  appear  to  be  fair  and  reasonable.  These  rules  of  equity 
are  applied  in  the  cases  in  note  below."^ 

300.  Trusts  by  implication  or  operation  of  law.  A  husband 
had  real  estate  conveyed  to  his  wife,  to  be  held  for  his  use,  in 
case  he  should  survive  her ;  but  if  he  should  die  first,  the  prop- 
erty was  to  belong  to  his  wife ;  she  at  the  time  of  this  convey- 
ance to  her  executing  to  her  husband  a  writing,  showing  she 
held  the  property  in  trust.     Shortly  before  her  death  the  wife 

65— Maynard  v.  Maynard,  194  232-236;  White  v.  Ross,  160  111.  56; 
111.  45-48;  Thomas  v.  Whitney,  186  Stahl  v.  Stahl,  214  111.  131;  Fred- 
Ill.  225;  Dowie  v.  Driscoll,  203  111.  rick  v.  Fredrick,  219  111.  568; 
480-490;  Allen  v.  Jackson,  122  111.  .Johnson  v.  Buck,  220  111.  226; 
567;    Larmon   v.   Knight,    140    111.  Compton  v.  McCaffree,  220  111.  137. 


TRUSTS  AND  TRUSTEES.  233 

conveyed  the  property  to  a  third  party  in  trust  for  her  infant 
son  by  a  former  marriage.  Under  this  statement  of  facts,  it  was 
held,  that  a  court  of  equity  would  set  aside  the  deed  in  violation 
of  the  trust,  and  vest  the  title  in.  the  husband.c<^    And  so,  a  trust 
by  implication  and  operation  of  law  will  be  declared  where  the 
facts  warrant/''^     Where  one  obtains  a  conveyance,  by  pretend- 
ing to  act  as  an  agent  for  another,  he  can  hold  the  legal  title 
only  in  trust  for  his  principal  and  as  security  for  the  money  ad- 
vanced.^^     So  where  a  son  is  authorized  by  his  mother  to  collect 
and  invest  her  money  for  her,  he  to  retain  as  compensation  all 
of  the  profits  in  excess  of  a  certain  per  cent,  was  regarded  as  a 
trustee,  and  not  as  a  borrower,  the  facts  showing  he  kept  the 
money  together,  and  invested  it  from  time  to  time,  and  spoke  of 
it  as  his  mother's  money .♦^^  And  where  one  obtains  a  conveyance 
from  an  insane  person  wrongfully  and  by  improper  means,  he 
may  in  equity  be  treated  as  holding  the  title  as  trusteeJ'^      So 
where  a  creditor  voluntarily  assumes  what  appears  to  be  a  friend- 
ly relation  to  his  debtor,  ostensibly  to  enable  the  debtor  and  his 
wife  to  save  their  homestead  from  other  creditors ;  and  by  means 
of  the  confidence  thus  inspired  obtains  the  title,  equity  will  raise 
a  trust    and    compel    the    creditor  to  perform  his  promise."^ 
Where  by  will  land  is  to  be  sold  and  the  proceeds  are  to  be  held 
as  a  trust  fund,  the  income  to  go  to  the  widow  for  life,  and 
upon  her  death  to  a  son  for  life,  and  upon  his  death  to  his 
children ;  if  the  son  buys  the  land  and  gives  his  note,  and  after- 
wards sells  a  part  to  the  widow  and  she  gives  her  note  to  the 
executor  who  credits  it  on  the  son's  note,  her  note  is  part 
of  the  trust  fundJ^     And  upon  settlement  of  conflicting  claims 
to  land,  one  of  the  parties  upon  receiving  title  is  to  select  and 

66 — Hazeltine    v.    Fourney,    120  53;  Phillips  v.  Edsall,  127  111.  535. 

Ill-  493.  69— Clapp  v.  Emery,  98  Ul.  523. 

67 — Krebaum  v.  Cordell,   63   111.  70 — Long  v.  Fox,  100  111.  43. 

23;  White  v.  Cannon,  125  111.  412;  71— Gruhn    v.    Richardson,    128 

Hagan  v.  Varney,  147  111.  281.  111.  178;  Allen  v.  Jackson,  122  111, 

68— Reigard    v.    McNeil,    38    111.  567. 

400;  Halloran  v.  Fitzgerald,  71  111.  72— Woodburn  v.  Woodburn,  123 

111.  608. 


234  THE  LAW  OF  ESTATES. 

convey  a  certain  number  of  acres  to  the  other,  in  consideration 
of  which  the  latter  is  to  release  his  claim  to  the  residue,  the 
former  upon  receiving  title  holds  that  number  of  acres  in  trust 
for  the  latter. '^3  And  where  property  is  obtained  by  fraudulent 
practice,  it  will  be  held  upon  a  constructive  trust  for  the  person 
defrauded.'^ ^  The  rule  is  therefore  well  established,  and  univer- 
sally enforced  to  the  effect,  that  where  the  acquisition  of  a  legal 
title  is  tainted  with  fraud,  actual  or  equitable,  or  where  the  trust 
depends  upon  some  equitable  rule  independent  of  fraud,  equity, 
to  prevent  injustice,  will  raise  a  trust  for  the  party  who  in 
equity  is  entitled  to  the  beneficial  enjoyment.'^^  And  it  is  held, 
the  word  "trust"  as  used  in  section  70,  chapter  3,  of  the  Admin- 
istration Act,'^^  making  unaccounted  for  trust  funds  a  claim  of 
the  6th  class,  is  restricted  to  technical  trusts  which  the  law 
implies  as  growing  out  of  contracts. 

301.  Trusts  ex  maleficio.  Hill  on  Trustees  gives  the  fol- 
lowing as  the  settled  doctrine:'''^  "Where  a  person  by  means 
of  his  promises,  or  otherwise  by  his  general  conduct,  pre- 
vents the  execution  of  a  deed  or  will  in  favor  of  a  third 
party  with  a  view  to  his  own  benefit,  such  is  clearly  within 
the  first  head  of  fraud,  as  distinguished  by  Lord  Hardwick, 
viz. :  That  arising  from  facts  or  circumstances  of  imposi- 
tion; and  the  person  so  acting  will  be  decreed  to  be  a  trustee 
for  the  injured  party,  to  the  extent  of  the  interest  of  which 
he  has  been  def rauded.  "^^  Where  the  wife  of  a  copy- 
holder prevented  her  husband  from  vesting  the  copyr 
hold   in    his   son   after  his   death,   by   promising,    herself,    to 

73— Jackson  v.  Horton,  126   111.  ments  thereto.    Vol.  1,  p.  300;  Vol. 

566.  4,  p.  36;   Vol.  5,  p.  18;   and  cases 

74 — Haynes  v.  Mclllwain,  53  111.  cited  under  section  of  statutes  in 

652.  question  in  each  volume.     Hurd's 

75— Chicago   Union   Nat'l    Bank  R.  S.  of  111.  1905,  p.  116.     Felsen- 

V.  Goetz,  138  111.  127.  thai  v.  Kline,  214  111.  121. 

76— Section  70,  Chap.  3,  "Admin-  77— 4th  Am.  ed.,  p.  234. 

istration,"  clause  6.    Starr  &  Curtis  78— Larman  v.   Knight.   140  111. 

Annotated     Statutes    of     Illinois,  236;  Hill  on  Trustees,  4th  Am.  ed. 

with  Jones  &  Addington's  Supple-  234. 


TRUSTS  AND  TRUSTEES.  235 

make  it  over  to  him  if  he  appointed  her  his  successor  instead 
of  his  son ;  in  such  case,  she  was  decreed  to  be  a  trustee  for  the 
son,  notwithstanding  the  statute  of  frauds,  on  the  ground  of 
fraud. '^^  And  so  it  is  held  to  be  within  the  principle  laid  down, 
that  where  a  person,  by  means  of  his  promises  induces  a  party 
not  to  let  real  estate  descend  as  it  otherwise  would  descend  as 
intended  to  his  heir.  In  such  case  the  injury  to  the  legatee  or 
grantee,  is  not  considered  different  or  greater  than  is  the  injury 
to  the  heir,  if  he  is  by  like  means,  deprived  of  what  would 
otherwise  have  been  his  inheritance.^"  "A  second  well  settled  and 
even  common  form  of  trust  ex  maleficio  occurs  whenever  a  person 
acquires  the  legal  title  to  land  or  other  property  by  means  of 
an  intentionally  false  and  verbal  promise  to  hold  the  same  for 
a  certain  specified  purpose — as,  for  example,  a  promise  to  con- 
vey the  land  to  a  designated  individual,  or  reconvey  it  to  the 
grantor,  and  the  like — and  having  thus  fraudulently  obtained 
the  title,  he  retains,  uses  and  claims  the  property  as  absolutely 
his  own,  so  the  whole  transaction  by  means  of  which  the  owner- 
ship is  obtained,  is  in  fact  a  scheme  of  actual  deceit,  "^^  A  trust 
ex  maleficio  was  established,  and  it  was  therefore  held  under  the 
facts  in  the  case,  that  the  heirs  of  the  deceased  succeeded  him  as 
trustee.^ 2  g^j^  in  the  case  of  Davis  v.  Stramnhaugh,^^  the  evidence 
did  not  establish  such  a  trust,  that  case  turning  upon  the  refusal 
of  the  trustee  to  execute  an  express  trust,  and  the  denial  of 
the  existence  of  the  trust  by  the  trustee,  the  court  holding,  the 
record  did  not  constitute  such  fraud  as  takes  the  case  out  of 
the  statute.  In  order  to  take  the  case  out  of  the  statute  and 
establish  a  trust  ex  maleficio,  the  transaction  by  means  of  which 
the  ownership  of  property  is  obtained  must  be  in  fact  a  scheme 
of  actual  deceit — in  other  words,  there  must  be  an  element  of 
positive  fraud  accompanying  the  promise,  and  by  means  of  which 

79 — Knight  v.  Larmon,   140   III.        81 — 2   Pomeroy's   Eq.   Jur.,    Sec, 
236.  1055. 

80— Knight  v.   Larmon,   140   111.         82— Knight  v.  Larmon,   140   111. 
236.  236, 

83—163  111.  557. 


236  THE  LAW  OF  ESTATES. 

the  acquisition  of  the  legal  title  is  wrongfully  consummated, 
otherwise  the  Statute  of  Frauds  would  be  virtually  abrogated. 
So  in  all  such  cases,  the  evidence  must  be  clear  to  establish 
such  a  trust,  and  the  evidence  must  show  directly  or  indirectly 
an  intentionally  false  and  fraudulent  verbal  promise  to  hold 
the  property  for  a  certain  specific  purpose.^* 

302.  Spendthrift  trusts.  Such  trust  estates  have  been  recog- 
nized, generally,  by  most  of  the  courts  of  the  United  States; 
and  their  treatment  of  the  subject  is  recognized  as  the  Ameri- 
can doctrine  in  relation  to  this  subject.  These  trusts  are  cre- 
ated for  the  purpose  of  providing  for  the  maintenance  of  a  son 
or  a  daughter,  or  a  designated  relative,  to  secure  such  against 
their  own  improvidence  and  incapacity  for  self-protection. 
Trust  estates  of  this  character  have  been  created  and  enforced 
in  Illinois,  and  are  now  fully  recognized  and  form  a  part  of 
the  well  settled  doctrine  of  courts  of  equity. ^^  In  the  case  of 
Steib  V.  Whitehead,  it  was  urged  upon  the  court,  that  to  give 
effect  to  such  provisions  in  the  will  before  it,  would  be  simply 
permitting  individuals  to  abrogate  and  annul  the  laws  of  the 
state  by  private  contract;  to  such  proposition  the  court  said: 
"But  while  this  is  undoubtedly  true,  it  does  not  necessarily  fol- 
low that  a  father  may  not,  by  will  or  otherwise,  make  such  rea- 
sonable disposition  of  his  property  when  not  required  to  meet 
any  duty  or  obligation  of  his  own,  as  will  effectually  secure  his 
child  a  competent  support  for  life,  and  the  most  appropriate, 
if  not  the  only,  way  of  accomplishing  such  an  object  is  through 
the  medium  of  a  trust.  Yet  a  trust,  however  carefully  guarded 
otherwise,  would  in  many  cases  fall  far  short  of  the  object  of 
its  creation,  if  the  father,  in  such  case,  has  no  power  to  pro- 

84— Allen    v.    Jackson,    122    111.  85—26    Am.    &    Eng.    Ency.    of 

567;  Moore  v.  Horsley,  156  111.  36;  Law,  2d  ed.,  137,  et  seq.,  and  cases 

Gruhn  v.  Richardson,  128  111.  178;  cited    bearing    on   the    subject    of 

Reed  v.  Peterson,  91  111.  288;  Big-  "spendthrift     trusts."       Steib     v. 

gins  V.  Biggins,  133  111.  211;  Lan-  Whitehead.  Ill  111.  247;   Kaufman 

try  V.  Lantry,  51  111.  548.  v.  Breckinridge,  117  111.  305;  Ben- 
nett V.  Bennett,  217  111.  440. 


TRUSTS  AND  TRUSTEES.  237 

vide  against  the  schemes  of  designing  persons,  as  well  as  the 
improvidence  of  the  child  itself.  Whatever  the  reverses  of 
fortune  may  be,  the  child  is  provided  for,  and  is  effectually 
placed  beyond  the  reach  of  unprincipled  schemers  and  sharp- 
ers. The  tendency  of  present  legislation  is  to  soften  and  ameli- 
orate, as  far  as  practicable,  the  hardships  and  privations  that 
follow  in  the  wake  of  poverty  and  financial  disaster.  The 
courts  of  the  country,  in  the  same  liberal  spirit,  have  almost 
uniformly  given  full  effect  to  such  legislation.  The  practical 
result  of  this  tendency,  we  think,  upon  the  whole,  has  been 
beneficial,  and  we  are  not  inclined  to  render  a  decision  in  this 
case  which  may  be  regarded  as  a  retrograde  movement. ' ' 

303.  Conveyance  to  use — statutes  of  uses.  The  statute  in 
that  regard  in  Illinois  is  as  follows:  "Where  any  person  or 
persons  stand  or  be  seized,  or  at  any  time  hereafter  shall  stand 
or  be  seized  of  and  in  any  messuages,  lands,  tenements,  rents, 
services,  reversions,  remainders  or  other  hereditaments,  to  the 
use,  confidence  or  trust  of  any  other  person  or  persons  or  of  any 
body  politic,  by  reason  of  any  bargain,  sale,  feoffment,  fine, 
recovery,  covenant,  contract  agreement,  will  or  otherwise,  by 
any  manner  of  means  whatsoever,  in  every  such  case  all  and 
every  such  person  or  persons,  and  bodies  politic,  that  have  or 
hereafter  shall  have  anj'  such  use,  confidence  or  trust,  in  fee 
simple,  for  term  of  life,  or  for  years  or  otherwise,  or  any  use, 
confidence  or  trust  in  remainder  or  reversion,  shall  from  thence- 
forth stand  and  be  seized,  deemed  and  adjudged  in  lawful 
seizin,  estate  and  possession  of  and  in  the  same  messuages, 
lands,  tenements,  rents,  services,  reversions,  remainders  and 
hereditaments,  with  their  appurtenances,  to  all  intents,  con- 
structions and  purposes  in  law  of  and  in  such  like  estates,  as 
they  had  or  shall  have  in  use,  confidence  or  trust  of  or  in  the 
same;  and  that  the  estate,  right,  title  and  possession  that  was 
or  shall  be  in  such  person  or  persons  that  were  or  hereafter 
shall  be  seized  of  any  lands,  tenements  or  hereditaments,  to  the 
use,  confidence  or  trust  of  any  such  person  or  persons,  or  of 
any  body  politic,  be  from  henceforth  clearlj--  deemed  and  ad- 


238  THE  LAW  OF  ESTATES. 

judged  to  be  iu  Iiiin,  her  or  them  tliat  have  or  hereafter  shall 
have  such  use,  confidence  or  trust,  after  such  quality,  manner, 
form  and  condition  as  they  had  before,  in  or  to  the  use,  con- 
fidence or  trust  that  was  or  shall  be  in  them.  "^^ 

This  act  has  been  in  force  in  Illinois  since  1827,  and  though 
rewritten  in  1845  and  1872,  was  not  changed  in  the  revision  of 
those  dates.  The  statute  practically  re-enacts  the  substance  of 
the  statute  of  uses,  27  Henry  VIII.  Under  the  operation  of 
this  statute,  a  conveyance  in  trust,  or  to  the  use  of  any  person, 
which  requires  no  duties,  prescribes  the  execution  of  no  trust, 
but  leaves  the  trustee  only  a  passive  title,  carries  to  the  cestui 
que  trust  lawful  seizin,  estate  and  possession.  In  such  case 
there  is  not  a  mere  equitable  title,  but  an  actual  seizin  and 
possession  in  fact — not  only  a  right  of  entry,  but  an  actual 
estate.  The  cestui  que  trust  may,  consequently,  convey  the 
estate  by  deed  without  the  intervention  of  his  trustee.  Livery 
of  seizin  is  abolished  by  the  first  section  of  the  Conveyance 
Act,  and  the  title  is  thereby  absolutely  vested  in  the  donee, 
grantee,  bargainee,  etc.,  independently  of  the  Statute  of  Uses. 
Hence,  under  this  statute,  a  deed  in  the  form  of  a  bargain  and 
sale  must  be  regarded  as  having  the  force  and  effect  of  a 
feoffment.  Under  the  Statute  of  Uses,  a  feoffment  to  A,  for 
the  use  of  or  in  trust  for  B,  would  pass  the  legal  title  to  B.  In 
a  deed  of  purely  bargain  and  sale,  independently  of  the  first 
section  of  the  conveyance  act,  the  rule  would  be  different,  and 
the  title  would  vest  in  the  bargainee.  Without  the  first  section, 
the  legal  title  would  be  in  the  trustee.  In  Witham  v.  Brooner, 
it  was  held,^'^  the  '  trust  in  question  was  a  passive  one, 
and  the  deed  operated  as  a  feoffment  would  at  common  law,  and 
vested  the  title  in  the  cestui  que  trust,  by  virtue  of  the  Statute 
of  Uses,  that  statute  executing  itself.    It  conveys  the  possession 

86 — Section  3,  chapter  30,  "Con-  Vol.  4,  p.  254,  and  cases  cited  in 

veyances,"     Starr  &  Curtis  Anno-  each  volume  under  section  of  stat- 

tated    Statutes    of    Illinois,    with  ute  in  question. 

Jones  &  Addington's  Supplements  87 — 63     111.     346;      Witham     v. 

thereto.     Vol.   1,  p.   914,   et  seq.;  Brooner. 


TRUSTS  AND  TRUSTEES.  239 

to  the  use,  and  transfers  the  use  to  the  possession;  and  by- 
force  of  the  statute  the  cestui  que  trust  had  the  lawful  seizin, 
estate  and  possession.  Three  things  must  concur  to  bring  an 
estate  in  land,  within  the  Statute  of  Uses:  First,  there  must 
be  a  person  seized  to  a  use ;  second,  a  cestui  que  trust ;  third, 
a  use  in  esse.  When  these  things  occur,  the  statute  operates 
instantly.^^  There  are  also  cases  in  which,  it  having  been  the 
duty  of  the  trustee  to  convey  to  the  heir  at  law,  it  will  be  pre- 
sumed, after  the  lapse  of  considerable  time,  that  such  conveyance 
has  been  made.^^  In  a  bill  filed  to  set  aside  certain  con- 
ditions in  a  will,  it  was  sought  to  make  the  gift  in  question, 
subject  to  a  condition  subsequent;  upon  the  theory,  that  the 
trust  created  in  the  executors  by  the  will,  was  a  mere  naked 
or  passive  trust,  and  therefore  the  condition  being  void,  the 
title  passed  immediately  to  plaintiff  in  error,  under  section  3 
of  the  Conveyance  Act.^*' 

304.  When  the  statute  takes  effect  and  executes  the  trust. 
In  the  case  of  Silverman  v.  Kristufek,^^  the  doctrine 
and  rules  are  clearly  set  forth  by  Chief  Justice  Magruder, 
speaking  for  the  court:  "In  order  to  bring  an  estate  within 
the  operation  of  the  Statute  of  Uses,  so  as  to  execute  the  use 
in  respect  to  the  same,  there  must  be  a  concurrence  of  three 
things ;  first,  a  person  seized  to  a  use ;  second,  a  cestui  que  use  in 
esse;  and  third,  a  use  in  esse  either  in  possession,  reversion  or 
remainder.  "^2  Tj^g  third  section  of  our  Conveyance  Act,  which 

88 — Lynch    v.    Swayne,    83    111.  title  in  fee  to  the  land  could  not 

336;    Kirkland  v.  Cox,  94  111.  411,  vest   in  the   plaintiff  in   error,   as 

et  seq.;  Witham  v.  Brooner,  63  111.  the  condition  was  precedent  to  the 

346.  vesting   of   such   title,    the   devise 

89 — 1  Perry  on  Trusts,  Sec.  350;  being   of   realty.     See  also   Perry 

Gibson  v.  Rees,  50  111.  383;   Kirk-  on  Trusts,  200;   Hill  on  Trustees, 

land  V.  Cox,  94  111.  411-413.  4th  Am.  ed.  376. 

90— Randall   v.    Boston,   172    111.  91—162  111.  229. 

439.     In   this  case   it   is  held,   as  92 — 2  Washburn  on  Real  Prop- 

the  trust  was  not  a  naked  or  pas-  erty,    marg.    p.    113;    Witham    v. 

sive  one,  and  if  the  conditions  in  Brooner,  63  111.  334;  27  Am.  &  Eng. 

the  will  should  be  held  void,  the  Ency.   of  Law,  p.   911,   and   cases 

cited  under  Statute  of  Uses. 


240  THE  LAW  OF  ESTATES. 

is  substantially  the  same  as  the  Statute  of  Uses  of  27  Henry 
VIII.,  provides,  that,  "where  any  person  shall  stand  seized  of 
and  in  any  lands  to  the  use  or  trust  of  any  other  person  or  per- 
sons or  of  any  body  politic,"  etc.^^  The  cestui  que  use  must  be 
a  person  or  body  politic — a  natural  person,  or  an  artificial  per- 
son, like  a  corporation.  Where  the  estate  is  limited  to  a  person  not 
in  esse,  or  capable  of  being  ascertained,  the  statute  will  have  no 
operation,  until  the  cestui  que  use  comes  into  being,  or  is  ascer- 
tained. Where  there  is  no  determinate  person  to  claim  as  bene- 
ficiary there  is  wanting  an  essential  element  of  a  trust,  and 
where  the  trustee  must  hold  the  legal  title  until  the  beneficiaries 
are  determined,  the  case  is  not  one  where  the  statute  transfers 
the  legal  estate  to  the  use.^^ 

305.  Where  the  statute  of  uses  does  not  execute  the  trust. 
The  doctrine  in  Illinois  is  well  settled  and  firmly  established, 
to  the  effect,  that  where  an  instrument  of  conveyance  or  will, 
imposes  on  the  trustees  active  duties  with  respect  to  the  trust 
estate,  such  as,  to  sell  and  convert  into  money,  or  to  lease  the 
same  and  collect  the  rents,  pay  taxes,  and  make  the  necessary 
repairs,  etc.,  and  pay  the  net  proceeds  to  the  beneficiary  it 
creates  an  active  trust  which  the  statute  does  not  of  itself 
execute.^ ^  Where  particular  things  are  to  be  done  by  the  trus- 
tees, it  is  necessary  that  the  estate  should  remain  in  them  so  long 
at  least  as  those  particular  purposes  require  it.^^  But  an 
active  trust  may  become  passive  and  trust  may  become  executed, 

93— Starr    &    Curtis    Annotated  95 — Meecham    v.    Steel,    93    111. 

Statutes  of  Illinois,  with  Jones  &  146;  Kellogg  v.  Hale,  108  111.  164; 

Addington's    Supplements   thereto.  Silverman    v.    Kristufek,    162    111. 

Vol.  1,  p.  914;  Vol.  4,  p.  254,  and  229;    Ure  v.   Ure,   185   111.    216;    1 

cases  cited  under  section  of  stat-  Perry  on  Trusts,  3d  ed..  Sec.  305; 

nte   in  question  in  each  volume;  2  Washburn  on  Real  Property,  5th 

Hurd's  R.  S.  of  111.  1905,  p.  464.  ed.,  p.  163. 

94—2  Washburn  on  Real  Prop-  96—1  Hill    (S.  C.)    413;    Silver- 

erty,   5th   ed.,  marg.   pp.    115,  116,  man    v.    Kristufek,    162    111.    229; 

163;      Preachers'    Aid    Society    v.  Chicago  Terminal  Transfer  Co.  v. 

England,    106    111.    125;     Dean    v.  Winslow,  216  111.  166. 
Long,  122  111.  447. 


TRUSTS  AND  TRUSTEES.  241 

by  the  Statute  of  Uses.^'^  In  the  ease  of  Chicago  Terminal  TranS' 
fer  Co.  V.  Winslow,  it  is  said:^^  "In  construing  the  Statutes 
of  Uses,  three  rules  are  applicable,  whereby  conveyances  are  ex- 
cepted from  its  operation,  viz.:  (1)  "Where  a  use  is  limited  upon 
a  use;  (2)  Where  a  copyhold  or  leasehold  estate  or  personal  prop- 
erty was  limited  to  uses;  (3)  Where  such  powers  or  duties  were 
imposed,  with  the  estate,  upon  a  donee  to  uses  that  it  was  nec- 
essary that  he  should  continue  to  hold  the  legal  title  in  order 
to  perform  his  duty  or  execute  the  power.®^  Special  or  active 
trusts  were  never  within  the  purview  of  the  statute,  and  if  any 
power  or  duties  are  imposed  upon  a  donee  to  uses,  or,  in  other 
words,  a  trustee,  which  makes  it  necessary  that  he  should 
continue  to  hold  the  legal  title  in  order  to  perform  his  duty  or 
execute  the  power,  the  trust  is  such  a  special  or  active  trust 
as  will  remain  unexecuted  by  the  statute.  Among  the  uses 
falling  within  these  rules  is  that  of  investing  the  proceeds  or 
principle  of  applying  the  income  to  the  estate.^  Also 
to  raise  a  certain  sum  of  money  for  some  prescribed  purpose 
from  the  income  of  the  estate  f  to  exercise  control  over  the 
estate  for  the  purpose  of  preserving  contingent  remainders  ;3  or 
to  protect  the  estate  for  a  given  time,  or  until  the  death  of  some 
person,  or  until  division.^ 

306.  Title  to  personal  property  not  affected  by  statute  of 
uses.  The  title  to  personal  property  included  in  a  trust  devise 
of  both  real  and  personal  property  is  not  affected  by  the  Stat- 
ute of  Uses.^ 

97— Meecham    v.    Steel,    93    111.  Ch.  87;  Wright  v.  Purson,  1  Edw. 

146;   Kirkland  v.  Cox,  94  111.  411;  Ch.  110. 

Kann    Moll    v.    Gardner,    214    111.  3 — Vanderhayden  v.  Crandall,  2 

248;    O'Melia  v.  MuUarky,  124  111.  Denio.  9. 

506;  Roth  v.  Michalis,  125  111.  325.  4— Williams  v.  McConico,  36  Ala. 

98—216  111.  166.  22;   Nelson  v.  Davis,  35  Ind.  474; 

99— Hill  on  Trustees,  230;  1  Per-  Morton    v.    Barnett,    39    Am.    Dis. 

ry  on  Trusts,  2d  ed.,  Sec.  300.  575;    Beach   on   Trusts,   Sec.    403; 

1 — Exter    V.    Odiorne,    1    N.    H.  Silverman    v.    Kristufek,    162    111. 

232;   Ashurst  v.  Given,  5  W.  &  S.  229. 

323.                                                      .  5—27  Am.  &  Eng.  Ency.  of  Law, 

2 — Stanley   v.   Leonard,   1   Edw.  p.  Ill,  and  cases  cited  in  note  1; 
16 


242  THE  LAW  OF  ESTATES. 

307.  Following  trust  fund.  A  trust  in  personal  property 
may  be  created  by  parol,  and  the  beneficiary  of  the  fund  may 
follow  it  in  all  forms  of  investment  it  may  assume.^ 

308.  Statute  of  limitations.  As  a  general  rule  the  statute 
does  not  run  where  a  trust  is  created  and  will  not  be  a  bar  to 
a  recovery  against  the  trustee  or  of  the  fund.  The  statute  of 
limitations  never  begins  to  run  in  any  event  to  bar  a  recovery 
of  a  trust  fund  until  subsequent  to  the  disavowment  of  the 
trust  by  the  trustee.'^ 

309.  Perpetuity.  The  general  rule,  and  the  most  acceptable 
and  often  quoted,  is  defined  to  be  "a  limitation,  taking  the 
subject  thereof  out  of  commerce  for  more  than  a  life  or  lives  in 
being  and  twenty-one  years  and  beyond,  with,  in  case  of  a  post- 
humous child,  the  time  of  gestation  added,  computed  at  nine 
months.^  When  trusts  created  violate  rules  of  perpetu- 
ity, they  are  void;  unless  they  come  within  the  rule  laid 
down  in  Lawrence  v.  Smith,  as  applied  and  adopted  from  the 
case  of  Tilden  v.  Green,  where  it  is  said:^  "The  appel- 
lants invoke  the  aid  of  the  principle  that  where  several 
trusts  are  created  by  a  will  which  are  independent  of  each 
other  and  each  complete  in  itself,  some  of  which  are  lawful  and 
others  unlawful,  and  which  may  be  separated  from  each  other, 
the  illegal  trust  may  be  cut  off  and  the  legal  ones  permitted 
to  stand.  This  rule  is  of  frequent  application  in  the  construc- 
tion of  wills,  but  it  can  be  applied  only  in  aid  and  assistance 
of  the  manifest  intent  of  the  testator,   and  never  where   it 

3  Jarman  on  Wills,  p.  51,  note  2;  drlch,  205  111.  242;  Helntz  v.  Den- 
Glover  V.  Condell,  163  111.  566;  Ure  nis,  216  111.  487. 
V.  Ure,  185  111.  216;   Chicago  Ter-  7— Albretch  v.  Wolf,  58  111.  186; 
minal    Transfer    Co.    v.    Winslow,  Hancock   v.    Harper,    8^    111.    445; 
216  111.  166.  Maher  v.  Aldrich,  205  111.  255. 

6— Bret  v.  Yeaton,  101  111.  242;  8— Biglow  v.  Cady,  171  111.  229; 

Sholty  V.  Sholty,  140  111.  81;  Price  Henderson  v.  Virden  Coal  Co.,  78 

V.   Laing,   152    111.    380;    White   v.  111.  App.  437;  Schaefer  v.  Schaefer, 

Sherman,  168  111.  589;  Maher  v.  Al-  141  111.  337. 

9—163  111.  165;   130  N.  Y.  29. 


TRUSTS  AND  TRUSTEES  243 

would  lead  to  a  result  contrary  to  the  will,  or  work  injustice 
among  the  beneficiaries,  or  defeat  the  testator's  scheme  for  the 
disposal  of  his  property.  The  rule,  as  applied  in  all  reported 
cases,  recognizes  the  limitation,  that  when  some  of  the  trusts 
in  a  will  are  legal  and  some  illegal,  if  they  are  so  connected 
together  as  to  constitute  an  entire  scheme,  so  that  the  presumed 
wishes  of  the  testator  would  be  defeated  if  one  portion  was 
retained  and  other  portions  rejected,  or  if  manifest  injustice 
would  result  from  such  construction  to  the  beneficiaries,  or 
some  of  them,  then  all  the  trusts  must  be  construed  together, 
and  all  must  be  held  illegal  and  must  fall.  "^^' 

310.  Equitable  conversion.  The  universal  rule  as  laid  down 
by  text  writers,  and  ado^jted  in  Illinois  by  numerous  authori- 
ties, is  taken  from  the  leading  case  of  Fletcher  v.  Ashburner, 
it  is  as  follows  :^i  "Nothing  is  better  established  than 
this  principle,  that  money  directed  to  be  employed  in 
the  purchase  of  land,  and  land  directed  to  be  sold  and  turned 
into  money,  are  to  be  considered  as  that  species  of  property 
into  which  they  are  directed  to  be  converted ;  and  this  in  what- 
ever manner  the  direction  is  given,  whether  by  will  or  by  way 
of  contract,  marriage  articles,  settlements  or  otherwise;  and 
whether  the  money  is  actually  deposited  or  only  covenanted  to 
be  paid,  whether  the  land  is  actually  conveyed  or  only  agreed 
to  be  conveyed,  the  owner  of  the  fund  or  the  contracting  par- 
ties may  make  land  money,  or  money  land.^-  A  total 
failure  of  the  objects  of  conversion  prevents  any  conversion 
from  taking  place,  whether  under  deed  or  will.^^  But  if  there  is 
a  partial  failure,  the  heirs  usually  take,  and  not  the  personal 
representatives  of  the  testator;  and  in  such  case  the  heirs  take 
as  money,  and  the  law  of    the    domicile    will    govern.^'*     But 


10— Hale  V.  Hale,  125  111.  399 
Schaefer  v.  Scliaefer,  141  111.  337 
Post  V.  Roherbach,  142  111.  600 
Lawrence  v.    Smith,   163    111.   164 


111.  103;  .Jennings  v.  Smith,  29  111. 
120;  Ridgeway  v.  Underwood,  67 
111.  419;  Wright  v.  Marshall,  72  111. 
585. 


Pitzel  V.  Schneidei',  216  111.  87.  13 — Roper  on  Legacies,  542. 

11—1  Bro.  C.  C.  497.  14— Richards    v.    Miller,    62    111. 

12— Baker    v.    Copenbarger,    15     423. 


244  THE  LAW  OF  ESTATES. 

in  some  cases,  under  the  construction  given  to  wills,  in  order 
to  arrive  at  the  intention  of  the  testator,  the  personal  repre- 
sentative takes,  and  if  he  does  it  is  in  money.  The  rule  is  laid 
down  by  Jarman  on  Wills  :^  ^  "  Every  conversion,  however  ab- 
solute, will  be  deemed  to  be  a  conversion  for  the  purposes  of  the 
will  only,  unless  the  testator  distinctly  indicates  a  different  in- 
tention. ' '  Therefore  whoever  takes  property  under  a  will,  takes 
it  in  the  character  impressed  upon  it  by  the  testator.^  *^  Where 
the  will  directs  that  the  property  be  converted,  land  into  money 
or  money  into  land,  the  conversion  is  in  equity  regarded  as  made, 
the  direction  being  imperative.^'''  But  where  the  will  gives  a  mere 
option,  a  mere  power  to  be  exercised  at  discretion,  the  conver- 
sion is  regarded  as  made  only  when  it  is  made  in  fact.^*  So 
where  a  mere  direction  to  sell  is  not  acted  upon,  and  no  trust 
is  created  under  the  will,  it  does  not  amount  to  a  conversion.^^ 
Equity  never  requires  a  useless  act.^*^  Land  required  to  be  re- 
duced to  money  is  regarded  as  personal  property.^i  Thus,  a  will 
giving  to  testator's  wife  all  his  personalty  and  one-third  of  his 
real  estate,  and  giving  to  aliens  the  rest  ^nd  residue  of  his 
"estate,"  making  his  wife  executrix,  and  giving  her  full  power 
to  take  possession  of,  manage  and  control  his  estate,  with  power 
to  sell  and  convey,  divide,  and  distribute  it, ' '  but  the  proceeds  ta 
be  by  her  given  to  my  legatees,"  works  an  equitable  conversion 
of  the  two-thirds  of  the  real  estate.22     A  testator  provided  by 

15 — 1  Jarman  on  Wills,  Sec.  558.  22 — Greenwood     v.     Greenwood, 

16 — Strode    v.    McCormick,    158  178  111.  387.     In  this  case  it  was 

111.  142;   Burback  v.  Burback,  217  said:     In  order  to  understand  the 

111.  547.  testator's  circumstances,  the  court, 

17 — Davenport    v.     Kirkpatrick,  in  construing  a  clause  of  a  will 

156  111.  169;   Ducker  v.  Burnham,  disposing  of  the  residue  of  the  tes- 

146  111.  9.  tator's   estate   to   the   children    of 

18 — Ducker  v.  Burnham,  146  111.  his  deceased  brother,  may  receive 

9.  evidence  as  to  the  character  of  the 

19 — Gill  V.  G.  T.  M.  Co.,  92  111.  testator's  property,   that  the   chil- 

254.  dren  of  the  deceased  brother  were 

20 — Higgins  v.  Lansing,  154  111.  non-resident  aliens,   and   that  the 

301.  testator   knew   that   fact.     It  will 

21 — Nevitt  V.  Woodburn,  175  111.  be  presumed  the  testator  knew  the 

376.  law  of  the  State  disqualifying  nc«ii- 


TRUSTS  AND  TRUSTEES.  245 

his  will,  that  one  of  his  children  should  receive  a 
certain  sum  as  compensation  for  services  rendered  tes- 
tator, and  that  he  might  have  the  privilege  of  tak- 
ing a  certain  tract  of  testator's  land  therefor  at  the 
appraisement.  The  remainder  of  his  property  he  divided 
among  his  children  equally,  providing,  however,  that  any  debts 
owing  the  estate  by  any  child,  should  be  deducted  from  such 
child's  share.  The  will  further  recited,  that  it  was  the  desire 
of  the  testator,  that,  if  the  heirs  could  agree,  they  should  divide 
the  real  estate,  but,  in  case  they  could  not,  the  executor  was 
authorized  to  sell  the  lands.  A  creditor  of  one  of  the  heirs, 
after  the  testator's  death,  levied  on  and  sold  the  interest  of  the 
heir  in  the  testator's  lands.  The  heirs  never  agreed  to  divide 
the  land.  Held,  that  by  the  will  there  was  an  equitable  con- 
version of  real  into  personal  property,  and  the  debtor  heir 
took  no  interest  in  the  real  estate,  and  hence  the  execution 
purchaser  acquired  no  title  which  would  support  partition.  ^3 
Therefore  it  is  the  established  rule  in  Illinois,  where  land  is 
converted  into  money,  under  the  provisions  of  a  will,  to  be 
divided  among  the  legatees,  it  must  be  treated  as  a  devise  of 
money,  and  not  land.^-*  Equity  has  power,  in  a  proper  case,  to 
authorize  a  conversion  of  trust  property  contrary  to  the  provi- 
sions of  the  will  creating  the  trust.^s 

311.    Relation  of  creditors  and  remaindermen  to  trust.    It 

is  said  in  Kami  Moll  v.  Gardner -."^^  It  is  understood 
by  the  law,  that  when  a  testator  conveys  land,  by  will,  to  a 
trustee  and  imposes  active  duties  upon  him,  such  as  the  care 
and  management  of  the  property  and  the  paying  of  the  income 

resident   aliens   from  taking  real  or   holding  title   to  land  in   Illi- 

estate,  and  that  he  did  not  intend  nois. 

to   die  intestate   as  to   a   part   of  23 — Robins   v,    Botkin,    181    III. 

the  property.     The  purpose  of  the  182. 

act    disqualifying    aliens    as    dev-  24 — English   v.   Cooper,   182   III. 

isees    was    not    to    inhibit    them  203. 

from  becoming  beneficiaries  under  25 — Johnson    v.    Buck,    220    111. 

wills,   but  merely  from  acquiring  226. 

26—214   III.   248. 


246  THE  LAW  OF  ESTATES. 

to  certain  persons,  such  a  will  creates  an  active  trust  and  the 
legal  title  to  the  property  vests  in  the  trustee;  and,  judgment 
creditors  can  obtain  no  lien,  as  against  any  of  the  remainder- 
men, so  long  as  the  legal  title  remains  in  the  trus- 
tee.2'^  ^j2(j  if  the  language  of  the  will  is  such  that 
the  trustee  at  the  time  of  the  termination  of  the  trust,  is 
given  the  power  of  sale  and  disposition  of  the  property  and  is 
to  divide  the  proceeds  among  certain  persons  therein  named, 
such  disposition  may  be  made,  notwithstanding  the  fact  that 
there  are  judgment  creditors  who  have  claims  against  the  per- 
sons named  in  the  will  as  remaindermen.  This  is  the  reason 
that  such  remaindermen  have  no  vested  title,  as  the  legal  title 
is  in  the  trustee  with  power  to  sell.^^  If  the  bequest  is  treated 
as  a  gift  the  remainderman  can  be  reached  by  creditors.^^ 

312.  Trust  will  not  be  defeated  if  beneficiary  is  trustee  for 
himself  and  others.  In  Summers  v.  Higlcy.^^  A  will 
devising  to  testator's  wife  all  of  his  estate,  "to  be  used  by 
her  for  her  own  support  and  for  the  maintenance  and  education 
of  my  children,"  with  directions,  as  executrix,  to  bestow  sums 
of  money  upon  the  testator's  father  if  he  became  infirm  and 
dependent.  Held,  such  devise  did  not  pass  a  fee,  but  did  create 
a  trust.  The  court  saying:  "It  is  clear  to  our  minds  that  by 
the  first  provision  of  the  will,  which  devises  the  property  to 
the  widow,  the  testator  intended  to  devise,  and  did  devise  the 
property  to  her  in  trust  for  certain  specified  uses — that  is,  for 
her  own  support  and  for  the  maintenance  and  education  of 
their  children  named  in  the  will.  The  fact  that  she  is  a  bene- 
ficiary   as    well    as    trustee     does    not    defeat    the    trust.^i 

27 — King  V.  King,  168  111.  273.  under  section  of  statute  in  ques- 

28— Binns  v.  La  Forge,   191  111.  tion.     Kurd's  R.  S.  of  III.  1905,  p. 

598;   section  49,  chapter  22,  Starr  233;    Lawrence   v.    Lawrence,    181 

&    Curtis    Annotated    Statutes    of  111.  248. 

Illinois,  with  Jones  &  Addington's  29 — Barita  v.  Boyd,  118  111.  190; 

Supplements    thereto.      Vol.    1,    p.  Railsback  v.  Lovejoy,   46   111.  446. 

49;    Vol.   4,  p.   106;    Vol.   5,   p.   54,  30—191  HI.  193. 

and    cases    cited    in    each    volume  31 — 1  Perry  on  Trusts,  Sec.  59. 


TRUSTS  AND  TRUSTEES  247 

The  property  is  given  to  her  to  be  used  by  her  for 
those  purposes.  It  seems  to  us,  the  language  is  as 
plain  as  it  would  have  been  had  it  stated  in  express  terms  that 
the  property  was  given  to  her  in  trust,  and  then  had  stated 
the  uses  to  which  it  was  to  be  devoted.^^  ^^^j  where  trustees  are 
the  "legatees,"  title  to  share  of  residue  vests  by  will  in  them 
during  period  of  trust.^^ 

32— Bennett  v.  Bennett,  217  111.     Society  v.  Mead,  131  111.  338;  Craw- 
440.  ford  V.  Cemetery  Association,  218 

33 — Woman's   Union   Missionary     111.  407. 


CHAPTER    XIII 


TRUSTS  AND  TRUSTEES— CONTINUED 


Sec. 

313.  Co-trustees       are       collective 

trustees. 

314.  Trustees       cannot       delegate 

their  powers,  but  may  em- 
ploy attorneys  or  agents. 

315.  Trustee    accepting    the    trust 

cannot  renounce  the  same  to 
free  himself  from  liability. 
He  must  seek  his  discharge 
by  accounting,  either  to  the 
cestui  que  trust,  to  the  court 
appointing  him,  or  take  his 
chance  of  being  called  to  ac- 
count by  any  court  of  equi- 
ty having  jurisdiction. 

316.  Power     of     trustees     coupled 

with  an  interest. 

317.  The  trustee's  title  to  land. 

318.  Conveyance   from   trustees   or 

their  heirs  necessary  to  re- 
vest title. 

319.  Trustee  must  defend  and  pro- 

tect his  title. 

320.  The    same    rules    applied    in 

equitable  and   legal  estates. 

321.  Trustee  cannot  create  lien  on 

assets  he  holds. 


Sec. 

322.  Reasonable     care     and     dili- 

gence exacted  of  trustee. 

323.  The  trustee  must  account  for 

all  trust  property  coming  to 
his  hands. 

324.  Where    trustee    is    guilty    of 

fraud  or  willful  default. 

325.  Tracing    and    restoring    trust 

fund. 

326.  Duty  of  trustee  to  collect  as- 

sets of  trust  estate. 

327.  Trustee  must  keep  clear  and 

accurate  accounts. 

328.  "Where   trustees    act    in    good 

faith. 
323.  Trustee   cannot    purchase    at 
his   own   sale. 

330.  Trustee    cannot    make    profit 

from  trust  property. 

331.  What  investments  of  the  trust 

fund  should  be  made. 

332.  What  considered  improper  in- 

vestments of  trust  funds. 

333.  Intermeddlers. 

334.  Bonds  of  trustees. 

335.  Compensation  of  trustees. 


Sec.  313.  Co-trustees  are  collective  trustees.  In  law  there 
is  no  such  person  known  as  an  acting  trustee  apart  from  his 
co-trustee;  all  who  accept  the  office  are  acting  trustees.  If 
any  one  trustee  who  has  accepted,  refuses  to  join  in  the  pro- 
posed act,  or  is  incapable,  the  others  cannot  proceed  without 

248 


TRUSTS  AND  TRUSTEES— CONTINUED.        249 

him,  but  an  application  must  be  made  to  court.^*  In  Casey  v. 
Canavan,^^  it  is  held :  Where  three  trustees  are  charged  with  the 
duty  of  selling  real  estate  and  distributing  the  proceeds  in 
stated  proportions,  they  have  no  right  to  permit  one  of  the 
trustees  to  alone  receive  certain  shares  and  distribute  them.  In 
the  case  of  Mannhardt  v.  Illinois  Staats  Zeitung  Co?^ 
it  is  held:  Where  a  stockholder  in  a  corporation  created 
a  trust  of  his  stock  therein  and  appointed  two  persons 
to  act  jointly  as  trustees  to  vote  the  same  neither  of  such  trus- 
tees could  assume  to  vote  such  stock  contrary  to  the  direction 
of  the  other,  either  alone  or  jointly  with  any  stockholder  other 
than  his  co-trustee.  In  Waterman  v.  Alden?'^  Wliere 
there  were  co-trustees,  it  was  held:  It  is  not  necessary  in 
the  transaction  of  ordinary  business  that  all  be  present  and 
participate  in  every  act.  But  in  the  case  of  a  public  trust,  cre- 
ated for  a  particular  charitable  purpose,  as  for  school,  hos- 
pital, almshouse,  church  or  other  institution,  where  there  are 
several  trustees,  the  act  of  a  majority  is  held  to  be  the  act  of 
the  whole  number;  but  the  act  of  the  majority  must  be  strictly 
within  the  sphere  of  their  power  and  duty.^^  And  this  power 
of  the  majority  may  grow  out  of  the  administration  of  a  chari- 
table trust,  where  the  court  appoints  the  trustees,  and  they  ad- 
minister the  trust  with  the  assistance  of  the  court  to  carry  out 
the  intention  of  the  donor.^^ 

314.  Trustees  cannot  delegate  their  powers  or  duties,  but 
may  employ  attorneys  and  agents.  If  a  person  takes  upon 
himself  the  management  of  property,  he  has  no  right  to  im- 
pose that  duty  on  others,  and  if  he  does  he  will  be  responsible 
to  the  cestui  que  trust,  to  whom  he  owes  the  duty.^*^  Whoever 
takes  property  under  a  will,  takes  it  in  the  character  impressed 

34 — 1  Perry  on  Trusts,  5th  ed.,  -  38 — 1  Perry  on  Trusts,  section 
Sec.  411.  413. 

35—93  111.  App.  538.  39—1    Perry    on    Trusts,    Sees. 

36—90  III.  App.  315.  731,  733,  734,  735. 

37—42  111.  App.  294.  40—1   Perry   on  Trusts,   section 

402. 


250  THE  LAW  OF  ESTATES. 

upon  it  by  the  testator."* ^  An  executor  cannot  delegate  to  an- 
other the  execution  of  a  power  of  sale  committed  to  him  by  the 
will  in  trust  and  confidence.^^  ^  power  of  sale  given  to  two 
executors  both  of  whom  qualify  and  take  upon  themselves  the 
burden  of  the  execution  of  the  will,  cannot  be  delegated  by  one 
to  the  other ;  and  an  agreement  for  a  sale  entered  into  by  one  co- 
executor  for  himself  and  the  other  is  not  valid,  and  cannot  be 
specifically  enforced.^^  If  a  trust  is  of  a  discretionary  nature,  the 
trustee  will  be  responsible  for  all  the  mischievous  consequences 
of  the  delegation,  and  the  exercise  of  the  discretion  will  be 
absolutely  void  in  the  substitute.^'*  The  general  doctrine, 
with  its  limitations,  is  well  stated  by  Perry  in  his 
work  on  Trusts."*^  That  author  says:  "If  an  agent  is 
employed  by  a  trustee,  and  thus  comes  into  possession  of  the 
property,  he  will  be  accountable  to  his  employer,  and  will  not 
be  responsible  as  a  constructive  trustee.  But  if  an  agent 
should  act  fraudulently  or  coUusively,  he  might  be  made  a 
trustee  by  construction,  and  as  such  accountable  to  the  cestui 
que  trust.  "■*°  *'If  an  agent  secures  any  benefit  from 
the  breach  "of  the  trust,  he  will  be  responsible  for  the 
property  to  the  party  entitled  to  the  beneficial  interest.  "**''' 
"If  they  mix  themselves  up  with  a  breach  of  trust, 
and  by  an  abuse  of  their  powers  as  simple  agents  obtain 
possession  of  the  trust  property,  the  cestui  que  trust  may  pro- 
ceed against  them  as  trustees  de  son  tort,  or  constructive  trus- 
tees. '  '48  The  rule  with  its  limitations,  as  stated  by  these  authors, 
is  fully  recognized  by  the  court  in  Davis  v.  Harhness.^^  "So  it  is 

41— Burbach  v.  Burbach,  217  111.  589;  Wilson  v.  Mason,  158  111.  313; 

547.  Lehman  v.  Rothbarth,  111  111.  189- 

42 — 2    Williams    on    Executors,  195. 

Am.   notes,   page  133,   marg.   page  45 — 1  Perry  on  Trusts,  Sec.  246. 

815;   7  Am.  &  Eng.  Ency.  of  Law,  46—1  Perry  on  Trusts,  Sec.  247. 

pp.    300,    301,    and    cases    cited    in  47 — 2  Perry  on  Trusts,  Sees.  813, 

notes.  907. 

43 — Sebastian  v.  Johnson,  78  111.  48 — Lewin  on   Trusts,   7th  Eng. 

282;  Wilson  v.  Mason,  158  111.  313.  ed.  175,  436,  550. 

44— Singleton  v.   Scctt,  11  Iowa  49—1  Gilm.   (111.)    173. 


TRUSTS  AND   TRUSTEES— CONTINUED.  251 

held  in  a  contract  between  a  firm  and  an  attorney,  where  the  lat- 
ter was  made  trustee  for  the  prosecution  of  certain  litigation  and 
distribution  of  proceeds,  which  directed  him  first  to  pay  the  costs 
and  expenses  of  the  litigation.  One  who  loaned  such  attorney 
several  sums  of  money  to  cover  such  expenses,  on  the  latter 's 
express  promise  to  pay  the  same,  with  6  per  cent  interest  from 
the  date  of  advancement,  was  held  to  be  entitled  to  a  decree 
against  such  attorney  conjointly  with  the  members  of  such 
firm  for  the  sums  advanced  with  interest  from  the  date  of 
advancement.^*^  It  will  thus  be  seen,  the  trustee  acting  at  times 
through  attorney  or  agent,  and  giving  instructions  to  the  same 
how  to  act,  cannot  be  said  to  be  a  delegation  of  the  trust.^^i 

315.  A  trustee  accepting  the  trust  cannot  renounce  the 
same  to  free  himself  from  liability.  He  must  seek  his  dis- 
charge by  accounting,  either  to  the  cestui  que  trust,  to  the 
court  appointing  him,  or  take  the  chance  of  being  called  to 
account  by  any  court  of  equity  having  jurisdiction.  A  trustee 
may  be  appointed  by  will,  deed,  or  other  w-ays,  without  the 
order  of  any  court  and  without  suit  pending,  and  his  powers 
as  a  rule,  are  governed  by  the  instrument  creating  the  trust, 
and  not  by  a  decree  of  court.  Property  in  his  possession  as 
trustee  is  not  in  custodia  legis,  as  in  the  case  of  receivers  or 
other  officers  of  the  law  or  of  the  courts.  But  if  the  trustee 
acting  under  a  will  or  deed  or  without  the  order  of  any  court 
has  been  derelict  in  his  duty,  has  failed  to  keep  proper  books 
of  account,  or  has  without  sufficient  warrant  depleted  the  trust 
fund,  he  can  be  required  to  account,  ajid  can  be  removed  if 
necessary  by  any  court  of  equity-  obtaining  jurisdiction  on  the 
complaint  of  interested  parties.^-  A  trustee  having  accepted 
a  trust,  can  not  renounce  it,  he  is  bound  to  discharge  its  duties, 
and  he  cannot  free  himself  from  liability  by  mere  renuncia- 
tion.    He  must  be  discharged  by  a  court  of  equity  after  he 

50— McGillis   V.    Hogan,  190   111.         52— Nevitt  v.  Woodburn,  175  111. 
176.  376;  Same  v.  Same,  190  111.  289. 

51 — 1  Perry  on  Trusts,  5th  ed., 
Sec.  409. 


252  THE  LAW  OF  ESTATES. 

has  accounted  for  the  trust  property  or  the  trust  funds,  or  by 
a  special  power  in  the  instrument  of  trust,  or  by  the  consent 
of  all  parties  interested  in  the  estate,  if  they  are  in  sui  juris. 
If  all  parties  are  not  sui  juris,  recourse  must  be  had  to  a  court 
of  equity  in  the  absence  of  any  provisions  in  the  instrument 
of  trust.°2  Even  though  a  trustee  give  a  bond  for  the  due  execu- 
tion of  the  trust,  and  in  a  suit  upon  the  bond  is  obliged  to  pay  the 
full  amount,  he  is  not  discharged  from  the  trust,  nor  does  the 
trust  property  properly  vest  in  him  beneficially.  He  is  still  a  trus- 
tee and  must  account  for  the  trust  property  and  all  the  income 
and  profits  to  the  cestui  que  trust,  or  to  the  court  from  which 
he  received  his  appointment,  or  to  a  court  of  equity  in  a 
proper  proceeding  in  which  an  accounting  with  the  trustee  is 
sought. ^^  Though  a  trustee  may  be  discharged  by  transfer  or 
settlement,  such  transfer  or  paper  of  settlement,  may  be  attacked 
and  impeached  on  the  ground  of  fraud,  accident  or  mistake.^^ 
In  the  latter  case  it  is  held :  A  release  by  a  cestui  que  trust  will 
not  be  binding  unless  he  is  first  made  fully  acquainted  with  his 
rights,  and  the  nature  and  full  extent  of  the  liabilities  of  the 
trustee.  Any  concealment,  misrepresentations,  or  other  fraudu- 
lent conduct,  on  the  part  of  the  trustee,  will  vitiate  such  a  re- 
lease.^^ 

316.  Power  of  trustees  coupled  with  interest.  Whoever 
takes  property  under  a  will  takes  it  in  the  character  impressed 
upon  it  by  the  testator.  Thus,  a  trustee  authorized  to  sell  lands 
and  to  hold  and  possess  them  for  the  purposes  of  the  trust  has  a 
power  coupled  with  an  interest;  and  where  the  will  gives  power 
to  sell  and  convey,  execute  deed  and  invest  the  proceeds,  and  to 
control  and  manage  the  estate  devised,  and  use  it  for  the  support 

53—1  Perry  on  Trusts,  5th  ed.,-  55—2  Perry  on  Trusts,  Sees.  922, 

Sec.  401;  Switzer  v.  Skiles,  3  Gill'  923;    Casey  v.  Casey,  14  111.   112; 

(111.)    529;    Nevitt   v.    Woodburn,  Dennis    v.    McCagg,    32    111.    429; 

190  111.  289.  Uhlich    v.    Muhlke,    51     111.    499; 

54 — 1    Perry    on    Trusts,    Sees.  Ward   v.   Armstrong,   84    111.   151; 

209,    401;    Fisk   v.    Seeberger,    154  Jones  v.  Lloyd,  117  111.  597. 

111.  30;  White  v.  Sherman,  168  111.  56— Same  v.  Same,  117  111.  597. 
611. 


TRUSTS  AND  TRUSTEES— CONTINUED.        253 

and  education  of  the  children  of  the  testator,  as  the  trustee  shall 
deem  best ;  in  such  case  the  trustee  may  sell,  either  by  public 
auction  or  by  private  contract,  as  may  be  most  advantageous  to 
the  trust  estate.  He  may  convey  in  satisfaction  of  a  debt,  or  sell 
for  cash  and  pay  the  debt.  And  under  a  state  of  facts,  consistent 
with  the  acts  of  a  trustee,  and  of  the  quantity  of  property  belong- 
ing to  an  estate,  of  all  of  which  the  trustee  had  full  knowledge, 
it  will  be  presumed  that  what  was  done  by  the  trustee  clothed 
with  such  power  and  interest,  was  for  the  best  interests  of  the 
estate,  and  made  the  remainder  of  the  estate  more  valuable.^''' 
Where  trustees  were  authorized  by  the  will  to  care  for,  rent  and 
manage  the  real  estate,  they  have  power  under  the  direction  of  a 
court  of  equity  to  make  a  99  year  lease  of  certain  of  the  real 
estate,  where  such  course  is  consented  to  by  all  adult  parties  in 
interest,  and  is  clearly  for  the  best  interests  of  the  estate  and  the 
beneficiaries.^^  This  case  follows  Marsh  v.  Reed,  where  it  was 
held,^^  a  court  of  equity  has  jurisdiction  of  a  bill  to  authorize  a 
trustee  under  a  will  to  execute  a  lease  of  the  estate  for  a  longer 
period  than  that  authorized  by  the  testator.  The  testator  granting 
the  trustee  power  to  lease  the  property  in  question  "provided, 
that  no  lease  be  for  a  longer  term  than  10  years. ' '  Upon  the  show- 
ing made  by  the  bill  it  appeared  the  trustee  could  lease  the  prop- 
erty for  a  period  of  99  years  at  $65,000  a  year  and  charges,  and 
that  all  the  adult  beneficiaries  were  desirous  that  the  application 
to  the  court  for  power  to  make  such  lease  be  granted.  A  decree 
was  therefore  entered  granting  power  to  trustee  to  make  such 
lease;  the  Supreme  Court  holding,  that  a  decree  granting  such 
application  was  proper.  The  equitable  principle  applied  in  this 
class  of  cases  arises,  where  the  directions  of  a  donor  as  to  the 
manner  of  executing  the  trust  are  found  to  be  defective  and  un- 
wise, it  is  held  as  ill  Curtis  v.  Brown :^^  "Exigencies 
often    arise    not    contemplated    by    the    party    creating    the 

57— White  v.  Glover,  59  111.  459;  58— Denegre  v.  Walker,  214  111. 

Taylor  v.  Walson,  177  111.  439;  Oil-  113. 

ver  V.  Oliver,  179  111.  9;   Casey  v.  59—184  111.  263. 
Canovan,  93  111.  App.  538. 


254  THE  LAW  OF  ESTATES. 

trust,  and  which,  had  they  been  anticipated,  would  undoubt- 
edly have  been  provided  for. ' '  Where  the  aid  of  a  court  of  chan- 
cery must  be  invoked  to  grant  relief,  imperatively  required,  the 
court  must,  as  far  as  may  be,  occupy  the  place  of  the  party  cre- 
ating the  trust,  and  do  with  the  fund  what  he  would  have  dic- 
tated had  he  anticipated  the  emergency,  "^i  Equity  has 
power,  in  a  proper  case,  to  authorize  a  conversion  of 
trust  property  contrary  to  the  provisions  of  the  will 
creating  the  trust.  Where  a  will  requests  a  majority  of  the 
testator's  children  to  sign  a  written  request  to  the  trustee  to  sell 
land,  neither  the  trustee  nor  the  party  to  whom  the  sale  was 
made,  though  they  are  both  children  of  the  testator,  should  be 
counted  in  determining  whether  a  majority  of  the  children 
signed.  A  sale  by  a  trustee  in  order  to  be  valid  and  binding 
must  be  conducted  fair  to  all  beneficiaries.*^^ 

317.  The  trustee's  title  to  land.  Where  the  purpose  of  the 
trust  requires  the  trustee  to  take  a  fee,  as  where  he  is  required 
to  convey  a  fee,  the  fee  passes.^^  Where  several  trusts  are  created 
in  the  same  instrument  some  of  which  will  be  executed  by  the 
Statute  of  Uses,  and  others  will  not,  the  trustee  takes  the  legal 
title.*^^  Where  property  is  devised  to  trustees  with  powder  to  pay 
over  the  interest  and  principal  to  the  cestui  que  trust,  his  wife 
and  children,  or  any  of  them,  at  the  trustee's  discretion,  so  that 
the  family  may  at  all  times  have  a  comfortable  support,  the 
trustees  take  the  fee  in  trust  during  the  continuance  of  the 
trust.^^  A  trustee  empowered  to  convey  land  to  the  objects  of 
the  settlor's  boimty,  acquires  whatever  estate,  even  to  a  fee  sim- 
ple, is  needed  to  enable  him  to  accomplish  the  purpose  of 
the    trust. ^"^      Or    when    he    has    active    duties    to     perform 

60—29  111.  201-230.  English,  106  111.  425;  Ebey  v.  Ad- 

61— Garvin    v.    Curtis,    171    111.  ams,  135  III.  80;  McDale  v.  Shep- 

640;   Johns  v.  Johns,  172  111.  472;  ardson,  53  111.  App.  513. 
Johnson  v.  Buck,  220  111.  226.  64— Silverman  v.  Kristufek,  162 

62— Fredrick    v.     Fredrick,    219  111.  222. 
111.  568;   Johnson  v.  Buck,  220  111.         6.5— King  v.  King,  168  111.  273. 
226.  66 — Lawrence  v.   Lawrence,    181 

63— Preacher's    Aid     Society    v.  111.    248;    Kann   Moll   v.    Gardner, 


TRUSTS   AND   TRUSTEES— CONTINUED.  255 

he  takes  the  legal  estate.  ^'^  If  a  trustee  is  required 
to  collect  and  pay  over  rents  for  an  indefinite  period, 
he  will  take  the  fee;  so  he  takes  the  fee  where  he  is  directed  to 
pay  debts  or  legacies  or  a  specific  sum  in  gross.  And  it  makes 
no  dift'ereuce  that  upon  a  final  administration  the  personal  estate 
may  prove  sufficient  to  liquidate  all  demands;  it  is  enough  that 
the  requirements  of  the  will  are  absolute  and  the  executor  con- 
ceivably might  have  to  resort  to  the  land  for  his  own  protection. 
Where  there  are  no  restrictive  words,  a  power  to  sell  is  to  be 
referred  to  the  trustee's  interest  or  estate  in  the  land,  and  his 
estate  will  be  construed  as  co-extensive  with  his  duty  to  sell, 
should  it  become  necessary,  which  would  require  a  fee.  The  trus- 
tee will  not  take  a  fee  where  the  exigencies  of  the  trust  may  be 
satisfied  with  a  less  estate.^^  "If  a  trustee  is  required  to  grant 
a  fee,  the  fee  must  be  conferred  upon  him.<^^  Where  the  trustee 
is  required  to  convey  the  title  to  the  beneficiaries  on  the  happen- 
ing of  a  certain  event,  the  trust  is  not  a  passive  or  dry  trust  and 
the  Statute  of  Uses  does  not  operate  to  vest  the  title  in  the  usee."*^ 
The  legal  title  involved  rested  in  the  trustee  for  certain  pur- 
poses and  upon  the  death  of  the  beneficiary  the  title  did  not 
remain  in  abeyance.''^^  Courts  of  equity  may  be  vested  with 
power  to  appoint  a  successor  to  a  trustee  in  whom  title  to  land 
may  rest,  but  such  title  cannot  descend  to  and  vest  in  a  court 
of  equity.  The  title  held  by  the  trustee  in  this  instance,  upon 
her  death  passed  to  her  legal  heirs,  subject  to  the  trust. ^^  Such 
heirs  were  necessary  parties  to  any  proceeding  instituted  for 
the  purpose  of  divesting  them  of  such  title."^^ 

214    111.    248;     Chicago    Terminal  Preacher's  Aid  Society  v.  England, 

Transfer  Co.  v.   Winslow,   216  111.  106  111.  425. 

166;   Burbach  v.  Burbach,  217   111.  70— Kirkland  v.  Cox,  94  111.  400; 

547.  Preacher's  Aid  Society  v.  England, 

67— Hale  v.  Hale,  146  111.  227.  106  111.  425. 

68— West  V.   Fitz,   109   111.   425;  71— Preacher's    Aid    Society    v. 

Lawrence    v.    Lawrence,     181     111.  England,  106  111.  425. 

248-251-252.  72—27    Am.    &    Eng.    Ency.    of 

69 — Kirkland  v.  Cox,  94  111.  400;  Law,  92,  and  cases  cited  in  notes. 

73— Sidles  V.  Switzer,  11  111.  533. 


256  THE  LAW  OF  ESTATES. 

318.  Conveyance  from  trustees  or  their  heirs  necessary  to 
revest  title.  Where  the  legal  title  is  vested  in  trustees,  nothing 
short  of  a  re-conveyance  can  revest  it  in  the  grantor ;  it  does  not 
revest  by  operation  of  law  upon  accomplishment  of  the  purpose 
of  the  trust. '^^  A  trustee  holding  the  title  to  land  may  convey 
to  a  third  person  at  the  request  of  the  cestui  que  trust,  and  thus 
pass  title.'^^ 

319.  Trustee  must  defend  and  protect  his  title.  A  trustee 
must  defend  and  protect  the  title  he  holds ;  also  he  must  perform 
all  the  duties  of  a  legal  holder  of  the  legal  estate.'^^  Courts  will 
imply  a  power  or  trust  and  put  itself  in  the  place  of  a  trustee, 
for  the  party  beneficially  interested,  or  the  cestui  que  trust.''^''' 
It  is  the  duty  of  the  trustee  to  pay  taxes.  If  discretionary 
under  trust  instrument,  the  court  will  construe  it  into  a  duty  to 
be  executed;  and  the  income  of  an  estate  must  as  a  general  rule 
bear  the  expense  of  administering  it.'^^ 

320.  The  same  rules  applied  in  equitable  and  legal  estates. 
It  is  a  fundamental  principle  that  equitable  estates  are  governed 
by  the  same  rules  as  legal  estates,  otherwise  inextricable  confu- 
sion would  ensue. "^  In  the  cases  cited  and  those  following,  the 
doctrine  being,  courts  of  equity  will  not  permit  limitations  of 
future  eiquitable  interests  to  transcend  those  of  legal  interests, 
which  are  upheld  as  executory  devises  and  shifting  and  spring- 
ing uses  at  law.^*^ 


74— Vallett   v.    Bennett,    69    111.  76—1  Perry  on  Trusts,  Sees.  326, 

632;   Kirkland  v.  Cox,  94  111.  400;  328,  473-476. 

Hardin  v.  Osborne,  60  111.  93;  Har-  77 — 1  Perry  on  Trusts,  Sec.  331; 

ris  V.  Connell,  80  111.  54;  McNabb  2  Perry  on  Trusts,  Sec.  527. 

V.   Young,    81    111.    11;    Hobble   v.  78— Butterbaugh's     Appeal,      98 

Ogden,  178  111.  357;  Rogers  v.  Tu-  Pa.  St.  351. 

ley,  144  111.  652.  79—1  Perry  on  Trusts,  357,  377, 

75— Rogers    v.    Tuley,    144    111.  382,    383;    Post   v.    Rohrbach,    142 

652;    Taylor    v.    Walson,    177    111.  111.  600;  Hart  v.  Seymour,  147  111. 

439;   Fisher  v.  Fairbanks,  188  111.  598. 

187.  80— Howe    v.     Hodge,     152     111. 

252;  Biglow  v.  Cady,  171  111.  229. 


TRUSTS  AND  TRUSTEES— CONTINUED.        257 

321.  Trustee  cannot  create  a  lien  on  assets  he  holds. 
Where  a  trustee  is  called  upon  to  account,  he  has  in  general,  no 
implied  power  to  charge  or  create  a  lien  on  assets  in  his  hands.^^ 
And  as  a  general  rule  he  cannot  set  off  an  independent  ordinary 
debt  due  from  the  beneficiary,  the  debt  and  the  trust  liability 
having  to  do  with  the  trustee  in  different  rights  or  capacities; 
there  is  no  mutuality  between  the  trustee  and  the  beneficiary.^^ 
And  imperfect  information  pertaining  to  the  trust  will  be  re- 
garded as  equivalent  to  concealment.^" 

322.  Reasonable   care    and    diligence    exacted    of   trustee. 

Speaking  generally,  the  law  exacts  from  a  trustee,  a  careful, 
consistent,  legal  and  honorable  administration  of  the  trust  and 
all  matters  relating  and  pertaining  thereto.  The  courts  seek  the 
highest  and  best  ability  in  the  person  or  corporation  adminis- 
tering a  trust  estate.  Courts  also  exact  the  clearest  perception 
of  the  duties  imposed  and  the  strictest  accounting  of  the  trust 
property  and  funds.  This  is  particularly  true  as  to  executors, 
administrators,  guardians  of  infants  and  lunatics  and  conserva- 
tors of  the  insane.  Indeed,  these  fundamental  relations,  duties 
and  responsibilities,  exacted  from  trustees,  are  for  the  safety  of 
personal  and  property  rights  and  cannot  be  disregarded  with 
impunity ;  they  are  the  foundation  upon  which  jurisprudence  in 
this  regard  must  rest.  These  general  principles  thus  announced 
need  no  citation  of  authorities  to  uphold  them,  but  such  will  ap- 
pear as  the  law  is  applied  to  the  duties  pertaining  to  trusts  and 
trustees.  A  trustee  is  bound  to  discharge  the  duties  of  his  trust 
to  the  best  of  his  skill  and  ability,  with  such  care  and  diligence 
as  men  fit  to  be  entrusted  with  matters  such  as  those  of  the  trust 
may  fairly  be  expected  to  exercise  in  their  own  business  of  equal 
importance.^* 

81— Chicago   Fire   Place   Co.   v.  83— White  v.   Sherman,   168   111, 

Tait,  58  111.  App.  293.  606;   Gibbons  v.  Hoag,  95  111.  45; 

82 — Knowles  v.  Goodrich,  60  111.  Henry  County  v.  Drainage  Co.,  52 

App.  506;  Nevitt  v.  Woodburn,  190  111.   454. 

111.    283;     Mannhardt    v.    Illinois  84 — Waterman  v.  Alden,  144  111. 

Staats  Zeitung  Co.,  90  111.  App.  90;  Same  v.  Same,  42  111.  App. 
315. 

17 


258  THE  LAW  OF  ESTATES. 

323.  The  trustee  must  account  for  all  trust  property  coming 
to  his  hands.  This  is  the  general  rule  whether  the  trustee  is 
appointed  by  court,  created  by  operation  of  law,  by  voluntary 
assignments,  by  deeds  of  trust  or  will  or  other  instrument.  In 
all  cases  the  judiciary  must  account  for  all  the  trust  property 
that  comes  to  his  hands,  whether  by  purchase  or  otherwise,  and 
for  all  profits  which  may  come  to  him  by  dealing  with  such  trust 
property,  for  all  bonuses  or  gratuities  given  to  him  by  strangers 
for  contracts  made  with  him  in  relation  to  the  trust  property. 
But  equity  goes  to  the  extent  of  watching  over  these  defined  re- 
lations of  parties;  it  scrutinizes  the  undefined  relations  of 
friendly  habits  of  intercourse,  personal  reliance,  and  confidential 
advice;  and  if  advantage  is  taken  of  such  relations  to  obtain  an 
unfair  bargain,  equity  will  set  it  aside  or  convert  the  offending 
party  into  a  trustee.  Equity  will  not  tolerate  extortion,  nor 
money  paid  under  duress  or  compulsion ;  nor  suffer  a  settlement 
to  stand  that  is  not  fair  and  equitable  between  the  trustee  and 
the  cestui  que  trust.^^  In  Spades  v.  Barrett,^^  it  is  held:  All 
promises  made  and  contracts  entered  into,  where  there  is 
duress  of  person  may  be  avoided.  Liberty  and  life  are  justly 
dear  to  all  men,  and  so  is  the  exclusive  right  to  possess,  dis- 
pose of  and  protect  from  destruction  our  property.  Thus, 
if  a  party  has  in  his  possession  goods  or  other  property,  belong- 
ing to  another,  and  refuses  to  deliver  such  property  to  the  other, 
unless  the  latter  pays  him  a  sum  of  money  which  he  has  no  right 
to  receive,  and,  in  order  to  obtain  possession  of  his  property,  he 
pays  that  sum,  the  money  so  paid,  is  a  payment  made  by  com- 
pulsion and  may  be  recovered  back.^'^  So  an  action  will  lie  to 
recover  money  wrongfully  exacted  by  a  corporation  as  a  con- 
dition permitting  a  transfer  of  stock.^^     And  where  there  was 

294;    Perrin   v.    Lepper,    72   Mich.  86—57  111.  289. 

454.  87 — Shaw  v.  Woodcock,   7  B.  & 

85—1  Perry  on  Trusts,  Sees.  209,  C.     73;     Ashley    v.    Reynolds,     2 

210;  Spaids  v.  Barrett,  57  111.  289;  Strange,    916;    Harmony    v.    Bing- 

Lehman  v.  Rothbarth,  111  III.  185;  ham,  12  N.  Y.  109-116. 

Same  v.  Same,  159  111.  270.  88- Cobb   v.    Charter,    32    Conn. 

364-366. 


TRUSTS  AND  TRUSTEES— CONTINUED.        259 

a  settlement  between  parties  and  receipt  passed  in  full,  the  ref- 
eree found  that  the  plaintiff  forced  the  defendant  into  the  set- 
tlement against  his  will  and  accord  by  taking  advantage  of  his 
pecuniary  necessities.  In  Vyne  v.  Glen,^'-^  the  court  said:  "It 
Is  idle  to  say  that  such  a  settlement  was  free  and  voluntary, 
and  that  it  should  be  sustained."  The  rule  is  laid  down  by 
Story  in  his  Equity  Jurisprudence,  section  523:  "But  if  there 
has  been  any  mistake,  or  omission,  or  accident,  or  fraud, 
or  undue  advantage,  by  which  the  account  stated  is  in  truth 
vitiated,  and  the  balance  is  incorrectly  fixed,  a  court  of 
equity  will  not  suffer  it  to  be  conclusive  upon  the  parties,  but 
will  allow  it  to  be  opened  and  re-examined.  In  some  cases  of 
gross  fraud,  or  gross  mistake,  or  undue  advantage  or  imposition, 
made  palpable  to  the  court,  it  will  direct  the  whole  account  to 
be  opened  and  taken  de  novo."^*^  A  settlement  pressed  upon 
wards,  about  the  time  of  their  becoming  of  age,  by  one  standing 
in  loco  parentis,  and  claiming  to  represent  their  mother  and  law- 
ful guardian,  from  which  the  latter  is  forcibly  excluded,  should 
not  be  sustained,  except  so  far  as  it  is  just  and  fair  to  them. 
If  based  chiefly  on  improper  charges  against  them,  they  should 
not  be  concluded  by  it.^^ 

324.  Where  trustee  is  guilty  of  fraud  or  wilful  default. 
An  abuse  of  trust  can  confer  no  right  on  him  who  abuses  it,  or 
any  one  claiming  in  privity  mth  him.^^  In  Butler  v.  Butler^^ 
the  evidence  of  record  shows  the  trust  funds  were  invested  by 
the  trustee,  in  the  opening  and  operating  of  a  coal  mine;  with- 
out authority  in  the  trustee  so  to  do,  given  by  the  instrument 
under  which  the  trust  was  originally  created.  The  court 
holding  such  investment  to  be  a  conversion  of  the  trust 
fund  without  authority,  amounting  to  an  abuse  of  the  trust.  On 
page  179  of  the  opinion,  it  is  said:     "Appellant  is  chargeable 

89—41  Mich.  112.  111.    185;    Same  v.   Same,   159    111. 

90— Story's  Eq.  Jur.,   Sees.  523,  270. 
848;  Spalds  v.  Barrett,  57  111.  289;         92— Bush   v.   Blanchard,    19    111. 

Pomeroy's  Eq.  Jur.,  Sec.  948.  31;  Bret  v.  Yeaton,  101  111.  242. 

91— Lehman    v.    Rothbarth,    111         93—164  111.   171. 


260  THE  LAW  OF  ESTATES. 

with  notice  of  the  trust  and  of  the  rights,  interest  and  equities 
of  appellees  in  the  land  and  mining  property,  and  it  is  the  set- 
tled doctrine  of  courts  of  chancery  that  cestui  que  trusts  may 
pursue  the  proceeds  of  the  trust  property  and  charge  with  the 
original  trust  any  property  in  which  they  may  be  invested,  as 
against  all  who  have  actual  or  presumptive  notice  of  the  trust; 
and  the  cestui  que  trust  may  elect  to  follow  the  funds  into  the 
new  investment,  or  to  hold  the  trustee  personally  liable.^* 

325.  Tracing  and  restoring  trust  fund.  In  Waodhouse  v. 
Crandall,  the  court  cites  the  following  rule  from  Pomeroy's 
Equity  Jurisprudence.^^  "If  the  trust  fimd  can  be  traced 
and  identified,  the  cest^(i  que  trust  has  a  right  to  it  and  to  the 
aid  of  a  court  of  equity  to  reach  it  and  compel  its  trans- 
fer to  him.  His  right  will  not  be  affected  by  any  change  in 
the  form  of  the  trust  property  by  the  trustee,  provided  that  the 
fund  can  be  identified  and  is  not  so  mixed  up  with  other  moneys 
or  property  that  it  can  no  longer  be  specifically  separated. ' '  The 
same  author  concerning  this  rule  says:  "This  universal  rule 
forms  the  protection  and  safeguard  of  the  rights  of  the  bene- 
ficiaries in  all  kinds  of  trusts.  It  enables  them  to  follow  trust 
property, — lands,  chattels,  funds  or  securities,  and  even  of 
money, — as  long  as  it  can  be  identified,  into  the  hands  of  all  sub- 
sequent holders  who  are  not  in  the  position  of  bona  fide  pur- 
chasers for  value  and  without  notice.  It  furnishes  all  those  dis- 
tinctively equitable  remedies  which  are  so  much  more  efficient 
in  securing  the  beneficiary's  rights  than  the  mere  pecuniary  re- 
coveries of  the  law.  "^^  And  it  makes  no  difference  on  the 
question  of  the  identity  that  the  fund  was  mingled  with  other 

94 — 1    Perry    on    Trusts,    Sees.  95 — 197  111.   104;   Pomeroy's  Eq. 

470-471;    2   Story's   Eq.   Jur.,    Sec.  Jur.,  Sees.  1048,  1058. 

1262;    11    Am.    &   Eng.    Ency.    of  96— Union    Nat'l    Bk.    v.    Goetz, 

Law,  837,  note  2;   Sholty  v.  Shol-  138  111.  127;  Wetherell  v.  O'Brien, 

ty,  140  111.  81;  White  v.  Sherman,  140  111.  146;  see  also,  where  same 

168    111.    603;    Leonard   v.    Specht,  rule  was  applied,  School  Trustees 

180  111.  208;  Reed,  Murdock  &  Co,  v.    Kirwln,    25    111.    62;    Kirby    v. 

v.  Sheffy,  99  111.  App.  189.  Wilson,  98  111.  240. 


TRUSTS  AND  TRUSTEES— CONTINUED.  261 

moneys  of  the  bank;  and  where  it  was  held  that  the  iden- 
tity of  the  fund  is  not  destroyed  and  lost  merely  by  being 
mingled  with  other  moneys  of  the  trustee.  In  Woodliouse  v. 
Crandall,^'^  it  is  said:  Equity  lays  a  charge,  in  such  a  case,  on 
the  funds  into  which  the  trust  money  is  traced,  and  not  on  the 
general  estate  of  the  trustee.  The  only  question  here  is  what 
is  a  sufficient  identification  and  the  rule  is,  that  if  it  can  be 
shown  the  money  is  in  a  specified  place,  equity  will  take  out  of 
that  place  enough  money  to  satisfy  the  trust.  In  this  case, 
we  think  the  trust  fund  was  traced  and  identified  by  legitimate 
evidence  and  rules  of  law  for  ascertaining  its  identity. 

326.  Duty  of  trustee  to  collect  assets  of  trust  estate.  Exec- 
utors and  trustees  must  promptly  collect,  especially  when  the 
debt  is  on  personal  liability  only,  though  the  debtor  is  reputed 
wealthy,  it  is  no  excuse  for  delay ;  and  mere  solicitation  without 
suit  for  payment  is  insufficient.^^  Trustees  in  this  regard  are 
held  to  the  same  diligence  they  should  exercise  as  to  their  own 
affairs.^^  In  the  case  of  Waterman  v.  Alden,^  it  was  estab- 
lished by  the  evidence  that  the  trustees  prior  to  the  bill  filed 
against  them  for  accounting,  were  guilty  of  some  negligence, 
in  and  about  the  management  of  the  trust  property.  First,  they 
wholly  failed  to  keep  proper  account  of  the  trust  funds  and 
their  dealings  with  the  same.  Second,  one  of  the  trustees  gave 
little  or  no  attention  to  the  business,  being  much  of  the  time  ab- 
sent from  the  state.  Third,  general  negligence  was  shown  in 
failing  to  promptly  collect  or  secure  claims  due  the  estate.  Among 
the  assets  of  the  estate  were  certain  notes,  and  a  failure  to  use 
proper  diligence  to  collect  these  notes  or  the  whole  amount 
thereof,  is  the  basis  upon  which  a  lack  of  diligence  on  the  part 


97—197  111.  104— page  116.  v.  Norcott,  13  Beav.  336;  Whitney 

98 — Lawson    v.    Copeland,    2    B.     v.   Peddicord,   63   111.   250;    Water- 

C.  C.  156;  Bailey  v.  Gould,  4  Y.  &     man  v.  Alden,  144  111.  90. 

C.    221;    Lewin    on    Trusts,    290;         99— Lewin  on   Trusts,   294,  307; 

Schouler  on  Executors,  267;  Byrne     Perry  on  Trusts,  266. 

1—144  111.  90. 


262  THE  LAW  OP  ESTATES. 

of  the  trustees  was  claimed.  The  court  held  in  that  case :  When 
trustees  to  whom  a  testator  devises  his  property  in  trust,  con- 
sisting of  notes,  among  other  things,  neglects  to  take  proper  steps 
to  collect  or  secure  the  same,  which  might  have  been  collected  or 
secured  by  proper  care  and  diligence,  whereby  the  debt  evidenced 
by  said  notes  is  lost,  the  trustees  will  be  chargeable  with  the 
amount  of  the  loss  from  their  neglect  of  duty.  The  fact  that  the 
relation  existing  between  the  testator  or  payee  of  the  notes  and 
their  maker  may  have  been  such,  that  the  former  would  if  liv- 
ing, rather  lose  the  debt  than  press  its  connection,  will  furnish 
no  excuse  for  the  trustees  to  neglect  or  fail  to  use  all  reasonable 
diligence  in  the  matter.  The  executors  and  the  trustees  being 
the  same  persons,  it  is  impossible  that  there  should  be  an  act 
of  fraud,  or  breach  of  duty  by  the  executors,  which  is  not  con- 
sented to  and  acquiesced  in  by  the  trustees.  Suppose  that  other 
persons  had  been  the  executors,  and  they  had  been  guilty  of  the 
conduct  charged  in  this  bill,  causing  the  loss  here  complained  of, 
and  these  trustees,  with  full  knowledge  of  that  misconduct,  had 
not  only  consented,  but  themselves  contributed  thereto,  would 
there  have  been  any  doubt  as  to  the  power  of  a  court  of  chancery 
to  charge  the  trustees,  regardless  of  the  liability  of  the  execu- 
tors, in  the  settlement  of  the  estate  in  the  County  Court?  Noth- 
ing which  may  hereafter  be  done  in  the  settlement  of  the  estate 
in  the  County  Court  can  affect  this  question,  and  we  are  unable 
to  see  why  these  complainants  should  be  sent  to  that  court  for 
the  settlement  of  their  rights. 

327.    Trustee  must  keep  clear  and  accurate  accaunts.     A 

trustee  or  executor  is  bound  to  keep  clear,  distinct  and  accurate 
accounts.  If  he  does  not,  all  presumptions  are  against  him,  and 
all  obscurities  and  doubts  are  to  be  taken  adversely  to  him.  If 
he  enters  these  accounts  in  his  private  books,  he  is  bound  to  pro- 
duce the  books,  although  such  books  contain  his  private  accounts ; 
and  even  if  he  enters  the  accounts  of  the  trust  in  the  books  of  the 
firm  of  which  he  is  a  partner,  the  books  must  be  produced.  The 
cestui  que  trust  may  enforce  these  rights  against  all  persons  act- 
ing for,  or  claiming  by,  through,  or  under  the  trustee  with  no- 


TRUSTS  AND  TRUSTEES— CONTINUED.       263 

tiee,  or  taking  without  value.^"  The  obligation  of  the  trustee  to 
account  is  in  no  way  affected  by  his  disposition  of  the  money; 
the  obligation  results  from  the  receipt  of  the  trust  funds.^**  It 
is  a  permanent  dutj^  of  trustees  to  have  their  accounts  ready 
and  open  for  inspection.  Courts  will  not  tolerate  an  omission  on 
their  part  to  keep  accounts.^  The  right  to  accounting  is  inci- 
dental to  the  trust  relation.^  The  burden  of  accounting  for  the 
assets  of  a  trust  estate  is  also  upon  the  trustee.^  A  settlement 
of  account  means  a  general  settlement  of  every  pending  trans- 
action ;  a  settlement  of  a  portion  af  an  account  is  not  in  this  sense 
a  settled  account.^ 

328.  Where  trustee  acts  in  good  faith.  As  has  been  stated 
a  trustee  is  bound  to  discharge  the  duties  of  his  trust  to  the  best 
of  his  skill  and  ability,  and  with  such  care  and  diligence  as  men 
fit  to  be  intrusted  with  matters  such  as  those  of  the  trust,  may 
fairly  be  expected  to  exercise  in  their  own  business  of  equal  im- 
portance.^ And  where  the  trustee  has  acted  in  good  faith,  he 
will  be  held  to  account  in  equity  only  for  what  he  has  actually 
received,  not  for  what  he  might  have  received."^  Courts  of  equity 
having  power  to  do  equity,  generally  allow  the  trustee,  the  actual 
money  paid  out  in  good  faith  for  the  preservation  of  the  trust 
estate.* 

329.  Trustee  cannot  purchase  at  his  own  sale.  If  trustee 
conveys  property  to  himself,  any  one  or  more  of  the  cestui  que 

la — 2  Perry  on  Trusts,  5th  ed.,  123;    Diversey  v.  Jolmson,  93  111. 

821;     Chicago    Mutual    Indemnity  563. 
Association  v.  Hunt,  127  111.  257.  5— Brula  v.  Setz,  5  111.  App.  116; 

lb — National      Park      Bank     v.  Diversey  v.  Johnson,  93  111.  563. 
Halle,  41   111.  App.   19.  6— Waterman  v.  Alden,  144  111. 

2— Uhlin    on    Trusts,    277;    Tif-  90;    Lewin    on    Trusts,    294,    307; 

fany    &    Bullard    on    Trusts,    704,  Perry  on  Trusts,  266. 
705,  706;  Perry  on  Trusts,  911.  7— Van  Buskirk  v.  Van  Buskirk, 

3 — Cochran  v.  Adams,  50  Mich.  148   111.   9;    2  Pomeroy's   Eq.   Jur. 

16;  Clark  v.  Pierce,  52  Mich.  157;  1058,  and  notes;  Hill  on  Trustees, 

Darrah   v.    Boyce,    62    Mich.    480;  marg.  p.  523. 
Morrison  v.  Mayer,  63  Mich.  238.  8 — Baker  v.  Baker,  14  Wis.  131; 

4 — Lehman  v.  Rothbarth,  159  111.  Cook  v.  Gilmore,  133  111.  189. 
270;  Brula  v.  Setz,  5  111.  App.  116, 


264  THE  LAW  OF  ESTATES. 

trust,  may  avoid  the  deed.  The  general  rule  being,  "that  the 
trustee  shall  not  take  beneficially  by  gift  or  purchase  from  the 
cestui  que  trust ;  even  though  the  supposed  trustee  and  purchaser 
is  a  mere  intermeddler,  and  not  a  regularly  recognized  trustee. 
The  question  is  not  whether  there  is  fraud,  in  fact,  the  law 
stamps  the  purchase  by  the  trustee  as  fraudulent  per  se;  and 
to  remove  all  temptation  to  collusion  and  prevent  the  necessity 
of  intricate  inquiries,  in  which  evil  would  often  escape  detection, 
and  the  cost  of  which  would  be  great,  the  law  looks  only  to  the 
fact  of  the  relation  and  purchase.^  In  equity  a  trustee  cannot 
himself  become  the  purchaser,  either  directly  or  indirectly,  of 
property  intrusted  to  him  to  sell;  if  he  attempts  to  purchase, 
the  sale,  however  fair  or  however  covered,  cannot  stand.^°  Nor 
can  a  company  of  which  the  trustee  is  a  member  purchase  ;^^ 
and  it  makes  no  difference  in  equity  whether  the  purchase  is 
in  the  name  of  the  trustee  or  in  the  name  of  another  for  his 
use.i2  Nor  whether  the  sale  is  made  with  or  without  a  decree  of 
court.13  ]s[or  whether  any  fraud  is  in  fact  intended.  But  at 
law,  to  invalidate  a  sale  made  by  a  person  acting  in  a  fiduciary 
capacity  on  the  ground  that  he  became  a  purchaser,  it  must 
appear  that  the  sale  was  fraudulent.^^  There  are  exceptional 
cases  where  a  trustee  might  be  permitted  to  use  the  trust  funds 
and  take  title  from  an  outstanding  holder  of  title,  such  as  a 
tax  title  creating  a  cloud  on  the  title  held  by  the  trustee,  but  in 

9 — 1   Perry   on   Trusts,   5th  ed.,  Mutual    Union    Loan    Association, 

Sec.  195.  146   111.  283;    Butler  Paper  Co.  v. 

10— Robbins    v.    Butler,    24    111.  Robbins,    151    111.    588;    White    v. 

387;    Lockwood    v.    Mills,    39    111.  Sherman,    168    111.    589;    Penn    v. 

602;  Kruse  v.  Steffens,  47  111.  112;  Folger,  182  111.  76. 

Phares    v.    Barbour,    49    111.    370;  11— Robbins    v.    Butler,    24    111. 

Ogden    V.    Larrabee,    57    111.    389;  387. 

Nelson    v.    Hayner,    66    111.    487;  12— Kruse    v.    Steffens,    47    111. 

Harts  V.  Brown,  77  111.  226;   Hig-  112. 

gins  V.  Curtiss,  82  111.  28;  Borders  13 — Ogden   v.    Larrabee,    57    111. 

V.  Murphy,  125  111.  577;  Russell  v.  577;    Borders  v.  Murphy,   125   111. 

Peyton,   4   111.  App.   473;    Tyler  v.  577. 

Sanborn,    128    111.    136;    Ligger   v.  14— Lockwood    v.    Mills,    39    III. 

602. 


TRUSTS   AND   TRUSTEES— CONTINUED.  265 

such  case  his  purchase  and  every  thing  relating  to  the  purchase 
should  be  disclosed  to  the  cestni  que  trust.^^  Or  he  might  pur- 
chase at  a  foreclosure  sale  where  he  holds  the  mortgage;  but  in 
such  case  would  be  trustee  of  property  purchased.^  ^ 

330.  Trustee  cannot  malie  profit  from  trust  property. 
Whatever  use  the  trustee  may  make  of  trust  property,  if  profit 
is  derived,  the  law  presumes  such  profit  is  for  the  benefit  of  the 
cestui  que  trust;  and  will  require  the  trustee  to  render  account 
thereof.  He  must  account  to  estate  for  commissions  received. 
And  it  is  not  essential,  that  the  estate  has  suffered  a  loss  from 
what  he  has  done ;  it  is  sufficient  that  the  trustee  has  gained  a 
profit.i^  The  profits  to  a  trustee  from  insurance  money  col- 
lected on  his  principal's  property,  for  which  he  refused  to  ac- 
count will  be  charged  to  him  in  accounting  by  the  court.^^ 

331.  What  investments  of  the  trust  funds  should  be  made. 

The  law  does  not  give  to  trustees  the  same  fi-eedom  of  choice  in 
investments  which  may  be  exercised  by  prudent  business  men  in 
their  own  affairs.  It  is  the  settled  rule  in  equity,  in  the  absence 
of  express  directions  in  the  instrument  creating  the  trust,  or  of 
statutory  permission,  that  trustees  can  not  invest  trust  property 
upon  any  mere  personal  security,  nor  upon  the  stocks,  bonds, 
or  other  securities  of  private  business  corporations.  In  England, 
the  rule  of  equity  is,  that  the  trustee  should  invest  trust  funds, 
in  real  estate  or  public  governmental  British  securities  and 
can  only  escape  risk  and  liability  by  investing  in  real  estate 
securities,  or  in  the  public  governmental  securities  of  the  British 
government.  In  the  United  States,  while  the  rules  are  certainly 
not  so  stringent  and  invariable  as  in  England,  and  while  different 

15 — ^Ward  v.  Armstrong,  84  111.  309;  27  Am.  &  Eng.  Ency.  of  Law, 

151,  and  cases  cited  in  opinion.  187,   194,   196,   and  cases  cited  in 

16 — Ogden    v.    Larrabee,    57    111.  notes;  1  Perry  on  Trusts,  Sec.  209; 

577;    Allen    v.    Jackson,    122    111.  2   Pomeroy's  Eq.   Jur.,   Sec,   1075; 

567.  Sholty  v.  Sholty,  140  111.  81;  Glov- 

17— White  V.   Sherman,  168   111.  er  v.  Cayton,  145  111.  92;   Hurd  v. 

611;    Fish    v.    Seeberger,    154    111.  Goodrich,    59    111.    450;     Asay    v. 

30.  Allen,    124   111.   391. 

18— Hoyt    V.    Shepherd,    70    111. 


266 


THE  LAW  OF  ESTATES. 


regulations  may  prevail  to  some  extent  in  different  states,  based 
partly  upon  statutory  legislation,  and  partly  upon  the  policy  of 
encouraging  local  enterprises,  the  same  fundamental  principle  of 
requiring  permanent  investments  in  real  estate  or  government 
securities  is  generally  recognized  by  the  courts ;  at  least  all  specu- 
lative risks  are  forbidden.^^  Thus,  the  investment  in  speculative 
railroad  stocks  are  not  within  the  limit  of  the  correct  rule  of 
equity.2'^     A  trustee  has  no  right  to  convert  money  into  land, 


19 — Pomeroy's  Eq.  Jur.,  Sec. 
1070,  et  seq.,  and  notes;  Perry  on 
Trusts,  Sees.  452,  454,  456,  459, 
and  cases  cited  in  notes;  Adair 
V.  Bremner,  74  N.  Y.  539;  King  v. 
Talbot,  40  N.  Y.  76;  Simmons  v. 
Oliver,  74  Wis.  633;  Story's  Eq. 
Jur.,  Sees.  1273,  1278,  and  cases 
cited  in  notes;  Sholty  v.  Sholty, 
140  111.  81;  Butler  v.  Butler,  164 
111.  171;  White  v.  Sherman,  168 
111.  589;  Penn  v.  Folger,  182  111. 
103. 

20— White  v.  Sherman,  168  111. 
603,  the  court  gives  in  its  opinion 
the  following  well  settled  rules: 
(1)  When  a  trustee  has  in  fact 
converted  trust  funds  to  his  own 
use  or  without  authority  has  in- 
vested the  trust  funds  in  any 
other  property  into  which  such 
trust  funds  can  be  distinctly 
traced,  the  cestui  que  trust  has  an 
election  either  to  follow  the  same 
into  the  new  investment,  or  to 
hold  the  trustee  personally  liable 
for  the  breach  of  trust.  Support- 
ing this  doctrine:  2  Story's  Eq. 
Jur.,  Sees.  1262,  1263;  Bret  v.  Yea- 
ton.  101  111.  242.  (2)  And  where 
the  trustee  invests  money  in  his 
individual  name,  he  commits  a 
breach  of  trust,  which  subjects 
him  to  the  same  liability  as  if 
there  had  been  a  wilful   conver- 


sion to  his  own  use.  Morris  v. 
Wallace,  3  Pa.  St.  319;  Stanley's 
Appeal,  8  id.  431;  McAlister  v. 
Commonweath,  30  id.  536;  2 
Pomeroy's  Eq.  Jur.,  Sec.  1079,  and 
cases  cited  in  notes;  Gilbert  v. 
Welsch,  75  Ind.  557;  Naltner  v. 
Dolan,  108  id.  500;  De  Jarnette  v. 
De  Jarnette,  41  Ala.  708;  27  Am. 
&  Eng.  Ency.  of  Law,  193,  196,  and 
cases  cited.  (3)  The  trustee  may 
not  deposit  trust  funds  in  his  own 
name,  for  if  he  do  so,  he  will  be 
held  to  a  strict  accountability  for 
the  conversion.  In  such  case  a 
strict  accounting  will  be  exacted 
from  the  trustee.  27  Am.  &  Eng. 
Ency.  of  Law,  pp.  160,  163,  and 
case  cited  in  notes;  McDonnell  v. 
Harding,  7  Sim.  177;  Williams  v. 
Williams,  55  Wis.  300;  Massey  v. 
Banner,  1  Jacob  &  W.  241;  Jen- 
kins V.  Walters,  8  G.  &  J.  218; 
Brown  v.  Dunham,  11  Gray  42; 
Summers  v.  Reynolds,  95  N.  C. 
404;  Syme  v.  Badger,  92  id.  706. 
(4)  A  trustee  must  act  with  dis- 
cretion— speculative  risks  by  him 
being  prohibited.  He  cannot  in- 
vest in  stocks  or  bonds  of  private 
corporations;  the  proper  method 
is  for  the  trustee  to  seek  direc- 
tions of  court  as  to  investment  of 
trust  funds,  so  that  he  may  be 
protected    by    the    order    of    the 


TRUSTS  AND   TRUSTEES— CONTINUED.  267 

or  land  into  money  at  his  pleasure,  when  not  authorized  ex- 
pressly or  impliedly  so  to  do,  in  the  instrument  creating  the 
trust.2^  And  in  the  absence  of  express  authority  by  statute,  or 
the  instrument  creating  the  trust,  he  cannot  invest  the  trust 
funds  in  stocks,  bonds  or  other  securities  of  private  corpora- 
tions.22  A  trustee  appointed  by  court  must  select  such  securi- 
ties for  the  investment  of  the  funds  of  his  trust  as  the  court  ap- 
pointing him  will  approve.23  That  the  investment  of  the  trust 
funds  in  the  individual  name  of  the  trustee  is  a  breach  of  the 
trust,  which  subjects  the  trustee  to  the  same  liability  as  a  wilful 
conversion.24  In  Penn  v.  Folger,  it  is  held,^^  the  trustee  can 
not,  without  being  guilty  of  conversion  of  funds  invest  in  pri- 
vate banking  business.  And  it  is  held,  even  when  the  trustee 
has  unlimited  discretion  in  the  investment  of  trust  funds  he  can- 
not invest  in  securities  not  sanctioned  by  a  court  of  equity.^^ 

332.    What  considered  improper  investment  of  trust  funds. 

Trustees  in  the  absence  of  power  and  authority  in  the  will  or 
other  instrument  creating  the  trust  must  not  invest  the  trust 
funds  in  private  bank  stock;  or  in  any  private  corporation;  nor 
employ  trust  funds  in  a  private  business  or  copartnership  or  in 

court.    White  v.  Sherman,  168  111.  al  bank.     In  the  absence   of  spe- 

589,  and  cases  cited  in  that  opln-  cific    directions    by    the    settlor    a 

ion.  trustee  should  invest  trust  funds 

21 — Sholty    V.    Sholty,    140    111.  in   real   estate  or  government  se- 

81.  curities,    or,   if   acting   under   the 

22 — White  v.   Sherman,   168   111.  direction  of  the  court,  in  such  se- 

589.  curities  as  it  may  approve,  other- 

28 — White  v.   Sherman,  168   111.  M'ise    he    will    not    be    protected 

589.  against  loss.     See  also  Hall  v.  Ir- 

24— White  v.   Sherman,   168  111.  v/in,   2   Gill    (111.)    176;    Nicoll   v. 

589;   Penn  v.  Folger,  182  111.  103.  Scott,  99  111.  529;    Conklin  v.  Ed- 

In  this  case  it  is  held,  an  admin-  gerton's    Adm'r,    21    Wend.    430; 

istrator  with  the  will  annexed  who  Perry  on  Trusts,  3d  ed.,  Sec.  245; 

holds  national  ban"R  stock  in  trust  Morris  v.   Joseph,   1   W.   Va.   256; 

is  without  authority,  upon  the  sur-  Piper  v.  Hoard,  107  N.  Y.  73. 
render  of  the  charter  of  the  bank,         25 — 182  111.  103. 
to    invest    the    trust    funds    in    a         26 — Matlocks  v.  Modlton,  84  Me. 

banking    partnership    which    con-  545;    Simmons  v.   Oliver,  74  Wis. 

tinues  the  business  of  such  nation-  633;  Penn  v,  Folger,  182  111.  103. 


268  THE  LAW  OP  ESTATES. 

the  payment  of  private  or  partnership  debts.^'  And  where  the 
other  partners  have  knowledge  of  the  nature  of  the  funds  at  the 
time  of  such  misappropriation,  they  are  implicated  in  the  breach 
of  trust,  and  become  themselves,  at  the  election  of  the  cestui 
que  trust,  his  debtors;  or  even  trustees  of  the  fund,  as  having 
connived  at  the  violation. -^  And  where  the  trustee  invests  trust 
money  in  his  individual  name,  he  commits  a  breach  of  trust.^^ 
Or  if  he  deposits  the  trust  funds  in  his  own  name,  he  is  regarded 
in  equity  as  converting  the  trust  funds  to  his  own  use.^o  And 
in  case  of  gross  delinquency  a  court  of  equity  has  power  to 
compound  interest  annually  or  at  shorter  periods,  according  to 
the  delinquency  of  a  trustee.^^ 

333.  Intermeddlers.  A  person  may  become  a  trustee  by 
intermeddling  with,  or  assuming  the  management  of  trust  prop- 
erty without  authority.  Such  persons  are  treated  as  and  called 
trustees  de  son  tort?'^  Sometimes  administrators,  with  the  will 
annexed,  appointed  by  the  court  to  succeed  an  executor  with  pow- 
ers defined  by  will,  through  mistake  or  otherwise,  mix  themselves 
up  with  trust  property  and  undertake  to  perform  acts  that  do  not 
belong  to  the  office  of  such  administrator.  When  such  do  so,  or 
intermeddle  with  trust  property  they  are  treated  as  trustees  de 
son  tort.^^  The  doctrine  laid  down  in  Hall  v.  Irwin,^'^  has  become 
firmly  fixed  and  settled  in  this  state.  ''That  executors  may  act 
in  a  double  capacity:  as  executors,  by  virtue  of  their  office,  and 
as  agents  or  trustees  under  a  warrant  of  attorney, — in  which  lat- 
ter capacity,  as  in  the  case  of  a  power  given  to  sell  land,  if  they 
act,  the  trust  imposed  upon  them  is  of  a  special  and  confidential 

27— Penn  v.  Polger,  182  111.  76.  31— Matthewson    v.    Davis,    191 

28— Emmerson    v.     Durand,     54  111.  399;   Hurd  v.  Goodrich,  59  111. 

Wis.    Ill;    Diirant   v.    Rogers,    87  450;  Asay  v.  Allen,  124  111.  391. 

111.  508;  Renfrow  v.  Pearce.  68  111.  32_perry  on  Trusts,   Sees.   245. 

125;  Penn  v.  Folger,  182  111.  76.  265,  and  cases  cited. 
29— Dennis    v.    McCagg,    32    111. 

49,  33— Hall  v.  Irwin,  2  Gilm.  (111.) 

30— White  v.    Sherman,   168  111.     176;    Nicoll   v.   Scott,   99   111.   529; 
589;   Hauk  v.  Van  Ingen,  196  111.     Penn  v.  Folger,  182  111.  76. 
200.  34—2  Gilm.  176. 


TRUSTS  AND   TRUSTEES— CONTINUED.  269 

character  and  cannot  be  delegated,  and  that  it  is  only  the  powers 
and  duties  of  the  executor,  as  such,  resulting  from  the  nature  of 
his  office,  which  devolves  upon  an  administrator  with  the  will  an- 
nexed ;  and  not  authority  as  trustee, — with  a  power  to  sell  land, — 
which  is  a  personal  trust  or  confidence  reposed  in  the  executor 
by  the  testator.  Thus  an  administrator  with  the  will  annexed, 
would  have  no  power  to  take  upon  himself  the  execution  of  a 
trust  in  the  will,  such  as  the  sale  and  conveyance  of  land,  for  if 
he  does  so  act,  those  acts  relating  to  the  trust  duty  will  be  de- 
clared invalid."  It  has  always  been  questionable,  whether  a 
court  of  chancery  has  power  by  its  decree  to  operate  a  trust 
vested  in  a  person  in  confidence  solely  by  the  terms  of  a  will.  That 
is  to  say,  whether  a  court  of  chancery,  by  its  decree  can  grant  a 
power  legally  correct  to  an  administrator  with  the  will  annexed 
to  carry  out  and  perform  a  power  wholly  vested  in  another.  The 
case  of  Penn  v.  Folger,^^  does  not  indicate  the  chancery  court 
entering  the  decree  passed  upon,  had  such  power;  and  it 
is  fair  to  assume  from  that  authority  at  least  such  court  had  not. 
That  decision  treats  the  person  acting  under  the  decree  as  a  trus- 
tee de  son  tort.  They  say  in  substance,  that  such  constructive 
trustees  are  subject  to  the  same  rules  and  remedies  as  other  trus- 
tees. They  cannot  avoid  liability,  and  must  account  for  trust 
property  with  which  they  become  mixed  the  same  as  though  they 
were  in  fact  trustees.^ "^  A  trustee  having  disposed  of  real  estate, 
in  violation  of  the  trust,  and  in  pursuance  of  a  conspiracy  to 
defeat  the  remaindermen,  the  latter  are  entitled  to  have  the 
fraudulent  conveyance  set  aside  in  equity,  and  the  real  estate  so 
conveyed  by  trustees  partitioned.^'^  It  is  held,  the  trustee  occu- 
pied the  position  of  a  trustee  de  son  to^-t  and  equity  will  compel 
an  accounting  and  set  aside  the  fraudulent  conveyancers 

35—182  111.  76,  and  cases  cited  37— Leonard  v.   Specht,   180  111. 

in  opinion.  208. 

36 — Larmon  v.  Knight,   140  111.  38 — Henderson     v.      Blackburn, 

232;    Gurn  v.  Richardson,  128   111.  104  111.  227;   Griffin  v.  Griffin,  141 

178;   Davis  v.  Stambaugh,  163  111.  111.  373;    Reed,  Murdock  &  Co.  v. 

557.  Sheffy,  99   111.   App.   189. 


270'  THE  LAW  OF  ESTATES. 

334.  Bonds  of  trustees.  As  a  general  rule  a  trustee  ap- 
pointed by  the  court  must  give  bond  with  sureties  approved  by 
the  court  and  for  an  amount  fixed  by  law  or  the  order  of  the  court 
appointing  the  trustee;  and  such  bonds  are  usually  given  and 
approved  when  the  office  is  accepted  under  the  appointment.  But 
when  the  sureties  on  the  official  bond  of  such  officer  are  waived 
by  the  instrument  under  which  he  acts  and  no  law  interferes  with 
the  waiving  of  security  in  the  instrument  under  which  the  trus- 
tee acts,  his  individual  bond  without  sureties  is  usually  filed  un- 
der the  order  of  court  reciting  the  facts.  If  the  trustee  ap- 
pointed by  the  court  be  a  corporation  authorized  by  law  to  ad- 
minister estates,  it  gives  bond  in  the  manner  required  by  the 
statute  under  which  such  corporation  is  created. 

Under  the  Statute  of  Illinois,  bond  is  not  required  to  be  given 
by  a  corporation  of  this  state  when  it  is  appointed  and  acts  as 
trustee,  etc.^^  Such  corporation  under  the  statute  makes  and 
keeps  on  deposit  with  the  Auditor  of  the  State,  money,  bonds, 
mortgages,  etc.,  in  the  way  of  securities  to  meet  its  obligations.^^ 
The  statute  in  question  for  the  administration  of  trusts  by  trust 
companies  is  substantially  as  follows:  Section  1  provides  the 
manner  of  giving  and  the  acknowledging  of  the  bond.  Sec- 
tion 15  provides,  "That  whenever  any  surety  on  the  bond  of 
any  guardian,  conservator  of  any  idiot  or  insane  person,  or 
the  trustee  of  any  fund  or  property,  appointed  by  any  court, 

39 — Pennsylvania  Co.  v.  Bauerle,  cited    in   each   volume   under  sec- 

143   111.  459.  lions  of  statute  noted;    Kurd's  R. 

40 — See  an  Act  to  provide  for  S.  of  111.  1905,  p.  539,  same  sec- 
and  regulate  the  administration  tions  and  chapter.  See  also,  Sec- 
of  trusts  by  trust  companies,  ap-  tions  1,  15,  16,  and  17,  Chapter 
proved  June  15th,  1887;  in  force  103,  entitled  "Official  Bonds." 
July  1st,  1887.  The  act  being  Starr  &  Curtis  Annotated  Stat- 
amended  in  part  and  approved  utes  of  Illinois,  with  Jones  &  Ad- 
June  1st,  1889,  in  force  July  1st,  dington's  Supplements  thereto. 
1889,  as  Sections  3  and  6,  Chapter  Vol.  2,  pp.  2831,  2837,  2838;  Vol. 
32,  entitled  "Corporations."  Starr  4,  p.  907,  and  cases  cited  in  each 
&  Curtis  Annotated  Statutes  of  volume  under  sections  of  statute 
Illinois,  with  Jones  &  Addington's  noted;  Kurd's  R.  S.  of  111.  1905, 
Supplements  thereto.  Vol.  1,  p.  same  sections  and  chapter,  pp. 
1041;    Vol.    4,    p.    318,    and    cases  1417,  1419,  1420. 


TRUSTS  AND  TRUSTEES— CONTINUED.        271 

or  the  heir,  executor  or  administrator  of  such  surety,  desires 
to  be  released  from  further  liability  upon  any  such  bond,  he 
may  petition  the  court  in  which  said  bond  is  filed  for  that  pur- 
pose, and  upon  notice  being  given  to  such  guardian,  conservator 
or  trustee,  in  such  manner  as  the  court  may  direct,  the  court  shall 
compel  such  guardian,  conservator  or  trustee,  within  a  reasonable 
time,  to  be  fixed  by  the  court,  to  appear  and  settle  his  accounts, 
and  to  file  in  such  court  a  new  bond,  with  such  penalty  and  se- 
curity as  may  be  approved  by  the  court,  which  being  done,  the 
surety  may  be  discharged  from  all  liability  on  such  bond. ' '  Sec- 
tion 16:  "If  such  guardian,  conservator  or  trustee  shall  fail  to 
comply  with  such  order  within  the  time  required,  the  court  shall 
order  such  person  to  be  removed  from  his  office  or  position,  and 
appoint  some  other  fit  person  guardian,  conservator  or  trustee, 
in  his  stead,  who  is  required  to  give  bond  as  required  by  law." 
This  section  further  provides,  that  the  person  thus  appointed 
shall,  in  case  his  predecessor  shall  fail  to  settle  and  pay  over  to 
him  the  moneys  and  other  property  and  effects  in  his  hands,  bring 
suit  on  his  predecessor's  bond,  and  when  collected  the  sureties 
on  such  bond  shall  be  discharged.  Section  17  provides:  "This 
act  shall  apply  to  all  such  bonds  now  in  existence  as  well  as  to 
those  heretofore  entered  into,  but  nothing  herein  contained  shall 
be  construed  to  release  or  in  any  way  impair  the  liability  of  any 
surety  on  such  bond  until  a  new  bond  is  filed.  "^^ 

335.  Compensation  of  trustees.  Under  an  act  of  the  legis- 
lature in  force  July  1,  1891,  Kurd's  Statutes,  1905,  Chapter  3, 
entitled  ' '  Administration  of  Estates, ' '  section  1,  p.  127,  it  is  pro- 
vided: "That  when  a  trustee  or  trustees  shall  hereafter  act  un- 
der any  power  or  appointment  given  or  created  by  any  will,  tes- 
tament or  codicil,  and  in  such  will,  testament  or  codicil,  except 
in  case  of  trusts  for  charitable,  religious  or  educational  purposes, 
shall  be  contained  no  provision  respecting  the  compensation  to 

41 — See  also  case  of  Potter  v.  judicate  under  this  statute  the 
Peoples,  92  111.  430,  where  it  is  trustee  must  be  appointed  by  a 
held,    to   give    jurisdiction    to   ad-     court  of  competent  jurisdiction. 


272  THE  LAW  OF  ESTATES. 

be  allowed  or  paid  such  trustee  or  trustees,  a  reasonable  compen- 
sation may  be  charged  and  allowed,  demanded  and  collected 
therefor."  Before  this  enactment,  the  services  of  a  trustee  in 
this  State  in  the  absence  of  a  provision  for  compensation,  in  the 
instrument  creating  the  trust,  were  to  be  performed  gratuitously 
and  without  regard  to  the  advantages  that  might  result  from  the 
superior  care,  skill  and  diligence  in  the  management  of  the  trust 
estate.'^^  In  the  case  of  Arnold  v.  Alden,^^  this  statute  was 
construed,  and  the  court  held,  that  the  act  of  1891,  which 
gives  compensation  to  trustees  who  "shall  hereafter  act"  under 
any  power  of  appointment  by  will  extends  to  trustees  who 
continue  to  act  under  trusts  thus  previously  created.  This,  not- 
witlistanding  the  constitutional  inhibition  of  the  impairment  of 
contract;  there  is  no  such  obligation  in  the  trust  relation.  The 
court  also  hold  in  this  case,  where  it  appears  the  trustee  has  re- 
ceived compensation  as  executor  or  administrator,  does  not  neces- 
sarily deprive  him  of  his  right  to  compensation  for  services  ren- 
dered as  trustee  provided  the  duties  are  separate.  But  this  act 
of  the  legislature  has  not  altered  or  changed  the  fundamental 
principles  under  which  a  trustee  recovers  fees  or  commissions  for 
his  services.  The  well  settled  and  invariable  rule  being,  "he 
must  faithfully  discharge  his  duties  toward  his  principal  or  cestui 
que  trust."  Thus  it  is  said  in  Lehman  v.  Eothharth:'^'^  "It 
is  well  settled  that  a  trustee  or  agent  can  recover  no  fees  or 
commissions  for  his  services  unless  he  has  faithfully  discharged 
his  duties  toward  his  principal  or  cestui  que  trust. "^^  "If 
he  has  neglected  his  duties,  exercised  bad  faith  in  the  conduct 
of  his  trust,  or  committed  a  breach  of  his  obligation  in  any  way, 
he  forfeits  his  right  to  compensation.  "^^ 

42— Cook    V.    Gilmore,    133    111.         45— Hoyt    v.    Shepherd,    70    111. 

139;  Buckingham  v.  Morrison,  136     309;    Brannon   v.    Strauss,    75   111. 

111.  437.  ■  234. 

43—173  111.  229.  46—27    Am.    &    Eng.    Ency.    of 

44—159  111.  282.    -  Law,  187,  and  cases  cited  in  note 

3. 


CHAPTER  XIV 


GIFTS  CAUSA  MORTIS  AND  INTER  VIVOS 


Sec. 

336.  Gifts  causa  mortis. 

337.  Three      principal      requisites 

necessary  to  constitute. 

338.  Who    may   make   gifts    causa 

mortis. 

339.  Such  a  gift  may  be  made  to 

one  in  trust. 

340.  All  the  elements  must  center 

in  the  gift  to  be  valid. 


Sec. 

341.  The  effect  of  such  a  gift  when 

established. 

342.  A  gift  inter  vivos. 

343.  Sufficiency  of  delivery  to  con- 

stitute a  valid  gift,  j 

344.  Right    of    dower,    homestead 

and  awards  not  affected. 


Sec.  336.  Gifts  causa  mortis.  Such  a  gift  is  defined  "a  gift 
of  personal  property,  by  a  person  who  is  in  peril  of  death,  upon 
condition  that  it  shall  presently  belong  to  the  donee,  in  case  the 
owner  shall  die,  but  not  otherwise.  "^  Under  the  Roman  law, 
such  a  gift  was  invalidated  unless  proved  by  five  witnesses  pres- 
ent at  the  time,  every  one  of  whom  was  required  to  be  a  Roman 
citizen,  of  full  age,  of  good  character,  and  not  related  to  either 
donor  or  donee.^  The  principles  of  the  Roman  law  were  incor- 
porated in  the  common  law  of  England,  and  owing  to  the 
adoption  or  application  of  the  common  law  by  America,  these 
principles  of  the  old  Roman  law  have  been  transplanted  as  a  part 
of  the  laws  of  the  different  states  of  the  United  States.  Courts 
frequently  express  themselves  very  forcibly  against  this  method 
of  giving;  Justice  Walton,  in  Drew  v.  Hagerty,^  says:  "Gifts 
causa  mortis  ought  not  to  be  encouraged.  They  were  often  sus- 
tained by  fraud  and  perjury  that  led  finally  to  the  enactment 
of  statutes  for  the  prevention  of  fraud  and  perjury."    And  the 


1 — 1    Story's    Equity    Jur..    Sec. 
606,  and  cases  cited  in  notes. 


2— Headley  v.  Kirby,  18  Pa.  St. 
326-328. 

3—81  Me.  231.  243. 


18 


273 


274  THE  LAW  OF  ESTATES. 

same  justice,  in  Hatch  v.  Atkinson:'^  "Courts  regret  that  this 
species  of  gift  has  not  been  swept  away  by  the  Statute  of 
Frauds."  Such  gifts,  however,  are  well  recognized  and  are  a 
part  of  the  established  jurisprudence  of  the  State  of  Illinois. 
It  is  said,  or  implied  in  the  following  cases,  there  is  no  limit  to 
the  extent  of  such  a  gift,  provided,  there  is  other  property  of 
the  donor  sufficient  to  satisfy  his  creditors.^  The  application 
of  the  law  concerning  such  gifts,  often  arises  in  the  adminis- 
tration of  estates;  and  generally  leads  to  serious  trouble  and 
contest,  owing  to  the  complex  questions  of  law,  that  must  of 
necessity  be  applied  where  such  gift  is  claimed. 

337.  Three  principal  requisites  necessary  to  constitute  a 
donatio  causa  mortis.  First:  The  gift  must  be  with  a  view 
of  the  donor's  death.  Second:  It  must  have  been  made  to  take 
effect  only  in  the  event  of  the  donor's  death  by  existing  disorder. 
Third:  There  must  be  an  actual  delivery  of  the  subject  of  the 
donation.^  A  delivery  to  a  third  person  with  direction  to  de- 
liver to  the  donee  is  sufficient,  although  the  deliver}^  by  the  third 
person  be  not  made  until  after  the  donor's  death.  The  circum- 
stances should,  however,  show  a  full  relinquishment  of  dominion 
over  the  property  to  the  trustee  for  the  purpose  of  the  trust." 
It  is  essential  to  such  gift,  that  the  donor  make  it  in  his  last 
illness,  or  in  contemplation  and  expectation  of  death.  The  ap- 
prehension of  death  may  arise  from  infirmity  or  old  age,  or 
from  external  and  anticipated  danger.^  The  gift  to  be  good  in 
law  must  be  made  to  take  effect  only  in  the  event  of  the  donor's 

4—56  Me.  326.  Roberts    v.    Draper,    18    111.    App. 

5— Roberts    v.    Draper,    18     111.  167;  Barnes  v.  People,  25  111.  App. 

App.  167;  Woodburn  v.  Woodburn,  136;    Ridden  v.   Thrall,   125   N.  Y. 

23  111.  App.  289;  Barnes  v.  People,  572. 

25  111.  App.  137;  Seavey  v.  Seavey,  7— Telford    v.    Patton,    144    111. 

30   111.   App.   625;    Telford   v.   Pat-  625;     Williams     v.     Chamberlain, 

I. ton,   144    111.    621,    623;    Martin   v.  165  111.   210;    Neville  v.  Jennings, 

Martin,  170  111.  29.  75  111.  App.  503;  Martin  v.  Martin, 

6—1  Story's  Equity  Jur.,   607a;  170   111.   18;    3   Redfield   on   Wills, 

Kenniston  v.  Sceva,  54  N.  H.  24;  Sec.  42. 

8—2  Kent's  Com.  1313,  1314. 


GIFTS  CAUSA  MORTIS  AND  INTER  VIVOS.  275 

death,  by  the  existing  disorder;  for  a  gift  to  take  effect  imme- 
diately, is  not  such  a  gift.**  A  gift  causa  mortis,  may  be  made 
to  one  in  trust  for  the  use  and  benefit  of  another  ;i'^  and  its 
validity  is  not  affected  by  the  fact  that  the  donee  takes  it  upon 
a  trust,  the  terms  and  limitations  of  which  are  prescribed  by 
the  donor,  and  may  vary  according  to  subsequent  events.^  ^ 
Money  and  bank  notes  of  private  individuals  and  drafts  pay- 
able to  the  donor,  also  bonds  and  mortgages,  are  ail  proper 
subjects  of  gifts  of  this  kind,  and  need  not  be  endorsed  or  as- 
signed.^ ^  But  the  promissory  note  or  other  contract  of  the  do- 
nor, by  which  he  or  she  undertakes  to  pay  money,  either  during 
his  life  or  out  of  his  estate  after  donor's  decease  will  not  do, 
for  such  will  not  be  considered  a  gift  causa  mortis;  neither  will 
his  draft  or  check  unaccepted.^^  A  person  making  such  a  gift 
may  remit  a  debt  due  to  him,  by  surrender  of  the  securities, 
with  a  verbal  declaration  of  intention  to  that  effect.^  ^ 

338.  Who  may  make  gifts  causa  mortis.  Any  person  pos- 
sessing the  capacity  to  make  a  will  may  give  his  property  mortis 
causa}^  Married  women  may  in  this  state  dispose  of  their 
separate  property  in  this  way,  under  the  act  of  the  legislature 
pertaining  to  husband  and  wife.^^ 

9—3  Redfield  on  Wills,  Sec.  42;  on  Wills,  Sec.  42,  and  cases  cited 

Marsh  v.  Prentiss,  40  111.  App.  74;  in  notes;    Shaw  v.  Camp,  160  111. 

Telford    v.    Patton,    144    111.    611;  425. 

Barnuni  v.  Reed,  136  111.  388;  Illi-  14—3  Redfield  on  Wills,  Sec.  42, 

nois  Christian  Missionary  Conven-  and  cases  cited  in  notes. 

lion  V.  Hall,  48  111.  App.  546.  15— Champney  v.  Blanchard,  39 

10—123  Ind.  321.  N.  Y.  Ill,  113;   Martin  v.  Martin, 

11— Clough  V.  Clough,  117  Mass.  170  111.  28-30;    Section  1,  Chapter 

83,  85;   Telford  v.  Patton,  144  111.  148,  "Wills."     Starr  &  Curtis  An- 

611.  notated   Statutes  of  Illinois,  with 

12 — Martin   v.    Martin,    170    111.  Jones  (z  Addington's  Supplements 

23-25;    3    Redfield    on    Wills,    Sec.  thereto.     Vol.   3,   p.   4021;    Vol.   4, 

42,  and  cases  cited  in  notes.  pp.  1283,  1284,  and  cases  cited  in 

13 — Illinois    Christian    Mission-  each  volume  under  section  noted-; 

ary    Convention    v.    Hall,    48    111.  Kurd's  R.  S.  of  111.  1905,  same  sec- 

App.  536;  Ridgeway  v.  McCartney,  tion  and  chapter,  p.  2050. 

160  111.  129;   Chamberlain  v.  Wil-  16— Section  9,  Chapter  68,  "Hus- 

liams,  62  111.  App.  423;  3  Redfield  band  and  Wife."     Starr  &  Curtis 


276  THE  LAW  OF  ESTATES. 

339.  Such  a  gift  may  be  made  to  one  in  trust,  for  the  use 

and  benefit  of  another/^  but  possession  must  be  in  the  donee 
or  his  trustee.i^  ^^  such  a  gift  is  an  executed  contract,  delivery 
of  the  subject  matter  of  the  gift  is  of  the  essence  of  the  title.^^ 
The  delivery  may  be  constructive,  as  of  a  key,  or  of  a  part  for 
the  whole.20  It  has  been  held  in  some  cases,  where  there  has 
been  a  delivery  to  a  trustee  for  the  benefit  of  the  donee,  with- 
out the  knowledge  of  the  latter,  acceptance  by  the  donee  is 
presumed,  the  gift  being  beneficial  to  him,2i  and  this  applica- 
tion of  the  law  by  arguendo  at  least  is  sustained  in  Telford  v. 
Patton.^2 

340.  All  the  elements  must  center  in  the  gift  to  be  valid. 

As  has  been  said,  all  such  gifts  depend  upon  contingency  of 
death,  to  take  effect  only  in  that  event,  coupled  with  the  actual 
delivery  of  the  subject  of  donation  to  the  donee  or  some  one  for 
him  in  trust.  Depending  upon  the  contingency  of  death  such 
gifts  may  be  revoked,  where  the  person  does  not  meet  with  ex- 
pected death,  all  circumstances  must  combine  so  as  to  show  that 
the  donor  intended  the  gift  to  take  effect  if  he  should  die  shortly 
after  making  such  gift.  If  he  or  she  should  recover  from  his  or 
her  peril  or  anticipated  death,  the  thing  or  subject  of  the  gift 
should  be  restored  to  the  donor. 23  The  donee  in  this  class  of 
gifts  derives  his  title  directly  from  the  donor  and  not  in  any 
sense   from   the   personal   representative    of   the    donor.^*      To 

Annotated     Statutes     of     Illinois,  261;    Telford    v.    Patton,    144    111. 

with  Jones  &  Addington's  Supple-  611. 

ments   thereto.     Vol.    2,    p.    2126;         20 — 1     Parsons     on     Contracts, 

Vol.  4,  p.  674;   Vol.  5,  p.  286,  and  page   234;    Telford  v.   Patton,   144 

cases  cited  in  each  volume  under  111.  611;  Martin  v.  Martin,  170  111. 

section  noted;  Kurd's  R.  S.  of  III  18. 

1905,  same  section  and  chapter,  p.         21 — Blasdel  v.  Locke,  52   N.   H. 

1147.  238;    Darland  v.   Taylor,   52   Iowa 

17— Deval  v.  Dye,  123  Ind.  321.  503;  Deval  v.  Dye,  123  Ind.  321. 
.     18— Barnes    v.    People,    25    111.         22—144  111.  611. 
App.   137;    Telford  v.   Patton,   144         23—2    Kent's   Com.    1313,    1314; 

111.  611;  Martin  v,  Martin,  170  111.  Nichols  v.   Adams,    2   Whart.    17; 

18.  Barnum  v.  Reed,  136  111.  588. 

19 — Grover  v.   Grover,   24   Pick.         24 — Gaunt  v.  Tucker,  18  Ala.  27; 


GIFTS  CAUSA  MORTIS  AND  INTER  VIVOS.  277 

sustain  such  a  gift  all  the  elements  of  the  law  applicable  to 
the  subject  must  center  in  the  transaction,  the  proof  must  be 
positively  clear  in  relation  to  the  donor's  intention  to  make  an 
absolute  gift  in  contemplation  of  death ;  and  the  burden  of  proof 
is  of  necessity  cast  upon  the  donee  or  the  one  claiming  such 
gift;  the  court  will  look  upon  the  whole  transaction  seriously, 
and  with  great  caution  examine  all  the  facts  and  circumstances 
in  relation  to  the  gift  with  jealous  care.^^ 

341.  The  effect  of  such  gift  when  established.  With  refer- 
ence to  the  effect  of  such  gift  after  death  of  donor,  it  is  good 
notwithstanding  a  previous  will.^s  A  court  of  equity,  in  a 
proper  case  will  enforce  and  ratify  a  gift  causa  mortis;  par- 
ticularly when  all  the  elements  of  the  law  have  been  complied 
with,  and  all  the  circumstances  indicate  or  establish  such  a 
gift  is  valid.^'^ 

342.  A  gift  inter  vivos,  is  chiefly  distinguished  from  a  gift 
causa  mortis  by  the  facts,  that  the  former  is  not  made  in  view  of 
expected  or  impending  death,  and  that  it  is  not  revocable  in  its 
nature. 28  It  is  essential  to  a  donation  inter  vivos,  that  the  gift 
be  absolute  and  irrevocable,  that  the  giver  part  with  all  present 
and  future  dominion  over  the  property  given,  that  the  gift  go 
into  effect  at  once  and  not  at  some  future  time,  that  there  be  a 
delivery  of  the  thing  given  to  the  donee,  and  there  be  ''such  a 
change  of  possession  as  to  put  it  out  of  the  power  of  the  giver 
to  repossess  himself  of  the  thing  given. '  '^^  To  constitute  a  valid 
gift  inter  vivos,  possession  and  title  must  pass  to  and  vest  in  the 

Taylor   v.    Harrison,    79    111.   App.  111.  App.  453;   Same  v.  Same,  160 

380;   Hagemann  v.  Hagemann,  90  111.  129;  Telford  v.  Patton,  144  111. 

111.  App.  251.  620;  Martin  v.  Martin,  170  111.  27. 

25— Chase  v.  Redding,   13   Gray  28—3   Pomeroy's  Eq.   Jur.   1146- 

418;    Mitchell    v.    Pease,    7    Cush.  1150,  and  cases  cited  in  notes  to 

350;   Headley  v.  Kirby,  18  Pa.  St.  sections;    8  Am.  &  Eng.  Ency.  of 

326.  Law,  pp.  1313-1330,  and  cases  cited 

26 — 2    Kent's   Com.    1313,   1314;  under  gifts  inter  vivos. 

Hambrooke  v.   Simmons,   4   Russ.  29 — 1     Parsons     on     Contracts, 

25.  marg    page  234;  Telford  v.  Patton, 

27— Ridgeway  v.  McCartney,  57  144  111.  620. 


278  THE  LAW  OF  ESTATES. 

donee,  or  in  a  trustee  for  the  donee.  If  anything  remains  to 
be  done  to  complete  the  gift,  what  so  remains  to  be  done  cannot 
be  enforced,  as  it  is  based  upon  no  consideration ;  and  when  the 
gift  is  thus  incomplete,  there  is  a  locus  poenitentiae,  and  the 
gift  may  be  revoked.^" 

343.  Sufficiency  of  delivery  to  constitute  a  valid  gift  inter 
vivos.  The  deposit  of  securities,  transferable  by  delivery,  by 
the  o'W'ner  in  a  safe  deposit  box  rented  by  his  niece,  who  carried 
the  key  and  to  whom  he  w^as  under  great  obligations  for  serv- 
ices, accompanied  by  oral  declarations  and  written  memoranda 
that ' '  everything  in  the  box ' '  Avas  to  be  hers,  that  he  ' '  had  no  fur- 
ther claim"  thereto  and  that  he  wanted  his  executors  "to  keep 
their  hands  off,"  constitutes  a  valid  gift  to  the  niece,  although 
the  uncle  afterward  took  out  and  collected  part  of  the  securities 
and  replaced  them  with  others,  and  although,  as  to  part  of  them, 
he  had  entered  in  his  diary  that  his  niece's  ownership  should  be 
simultaneous  with  his  death.^i 

344.  If  such  gift  was  made  affecting  the  rights  of  dower, 
homestead  and  widows'  or  children's  awards.  The  question 
has  not  yet  been  decided  in  Illinois,  whether  a  gift  causa  mortis 
or  intei'  vivos  can  be  made  that  will  interfere  with  the  rights 
of  dower,  homestead,  widow's  or  children's  award.  These  rights 
are  conceded  to  have  been  created  by  enactments  in  the  inter- 
est of  public  policy;  and,  it  would  seem  very  questionable 
Avhether  a  man  of  substance,  can  be  allowed  to  dispose  of  any 
part  of  his  estate  by  such  gifts,  unless  he  holds  sufficient  to  pay 
his  just  debts,  and  the  claims  of  dower,  homestead  and  awards; 
and  in  fact  contravenes  no  fixed  and  established  duty  he  is  com- 
pelled to  observe  under  the  law. 

30— McCartney  v.  Ridgeway,  160  31— Martin  v.  Martin,  170  111. 
111.  453.  19. 


CHAPTER  XV 


INHERITANCE  TAX  LAW  OF  ILLINOIS 


Sec.  Sec. 

345.  Inheritance     tax     law,     when     360. 

passed,  statute. 

346.  Rate   oL'  tax   statute.  361, 

347.  Lineal  descendants,  life  estate 

or    for    term    or    for    years,     362. 
rule    as    to    taxation,    bond, 
statute.  363. 

348.  What      institutions      exempt     364. 

from  such  tax  statute. 

349.  Taxes,  when  payable,  penalty,     365, 

statute. 

350.  Inheritance   tax,    when,    how, 

and  by  whom  paid,  statute, 

351.  Powers  of  executors  and  ad- 

ministrators, statute. 

352.  Tax  to  be  paid  to  treasurer, 

sealed  receipt,  statute. 

353.  When    real    estate    liable    to 

tax;  duty  of  executor,  in- 
formation in  writing  to  the 
treasurer,  statute. 

354.  When   portion   of   tax   repaid 

to  legatee,  who  has  to  re- 
fund, a  portion  of  the  lega- 
cy,  statute. 

355.  Foreign   executors   or   admin- 

istrators, property  in  the 
State,  statute. 

356.  When    tax    paid    erroneously, 

statute. 

357.  How    value    of    property    is 

fixed,  statute. 

358.  Clerks'  fees,  statute. 

359.  Appraisers     taking     fee     on 

award,  penalty,  statute. 

279 


366. 

267. 

368. 
369, 


370. 

371. 
372. 

373, 


374. 


Jurisdiction  of  county  court, 
statute. 

Proceedings  when  tax  has  not 
been   paid,  statute. 

Duty  of  officers  when  tax  has 
not  been  paid,  statute. 

Statement  in  writing,  statute. 

Expenses  of  proceedings,  stat- 
ute. 

Books  to  be  kept  in  the  of- 
fice of  the  county  judge, 
statute. 

Treasurer  to  pay  the  State 
Treasurer  all  taxes,  statute. 

Treasurer's  commission  or 
salary,  statute. 

Receipt,  statute. 

Proceedings  to  test  whether 
property  is  liable  to  tax, 
statute. 

Lien  of  the  collateral  inher- 
itance, statute. 

Repeal,  statute. 

The  act  declared  constitu- 
tional. 

Laws  governing  descent  and 
devise  of  property  in  Illi- 
nois are  wholly  statutory, 
and  may  be  changed  at  dis- 
cretion. 

Domicile,  within  the  meaning 
of  the  inheritance  act;  what 
constitutes  legal  residence 
thereunder. 


280  THE  LAW  OF  ESTATES. 


Sec.  Sec. 


375.  Time   when   tax   accrues  and 

becomes  payable. 

376.  Jurisdiction  and  powers  con- 

ferred upon  county  court 
and  judge  thereof  under  In- 
heritance Tax  act. 


377.  Fair     market     value     "casli 

value"   appraisement. 

378.  Property  and  interest  thereia 

liable  to  tax. 

379.  Exemptions. 


Sec.  345.  Inheritance  tax.  The  legislature  of  the  State  of 
Illinois,  by  an  act  entitled  "An  act  to  tax  gifts,  legacies  and 
inheritances  in  certain  cases  and  to  provide  for  the  collection  of 
the  same,"  approved  June  15th,  1895,  and  amended  and 
added  to  in  part  May  10,  1901,  passed  an  act  substantially  as 
follows  :^ 

346.  Rate  of  tax.  Section  (1) :  ''All  property,  real,  per- 
sonal and  mixed,  which  shall  pass  by  will  or  by  the  intestate  laws, 
of  this  state  from  any  person  who  may  die  seized  or  possessed  of 
the  same  while  a  resident  of  this  state,  or,  if  decedent  was  not  a 
resident  of  this  state  at  the  time  of  his  death,  which  property  or 
any  part  thereof  shall  be  within  this  state  or  any  interest  therein 
or  income  therefrom,  which  shall  be  transferred  by  deed,  grant, 
sale  or  gift  made  in  contemplation  of  the  death  of  the  grantor 
or  bargainor  or  intended  to  take  effect,  in  possession  or  enjoy- 
ment after  such  death,  to  any  person  or  persons  or  to  any  body 
politic  or  corporate  in  trust  or  otherwise,  or  by  reason  whereof 
any  person  or  body  politic  or  corporate  shall  become  beneficially 
entitled  in  possession  or  expectation  to  any  property  or  income 
thereof,  shall  be  and  is  subject  to  a  tax  at  the  rate  hereinafter 
specified  to  be  paid  to  the  treasurer  of  the  proper  county,  for  the 
use  of  the  state;  and  all  heirs,  legatees  and  devisees,  administra- 
tors, executors  and  trustees  shall  be  liable  for  any  and  all  such 
taxes  until  the  same  shall  have  been  paid  as  hereinafter  directed. 

1— Sections  1  to  23  inclusive,  3528,  et  seq.;  Vol.  4,  p.  1103,  et 
Chapter  120,  "Revenue"  Act.  Starr  seq.;  Vol.  5,  p.  490,  and  cases  cited 
&  Curtis  Annotated  Statutes  of  in  each  volume  under  sections  of 
Illinois,  with  Jones  &  Addington's  the  act  noted;  Kurd's  R.  S.  of  111. 
Supplements    thereto.      Vol.    3,    p.     1905,   same   sections   and   chapter, 

p.  1711,  et  seq. 


INHERITANCE   TAX  LAW  OF  ILLINOIS.  281 

"When  the  beneficial  interests  to  any  property  or  income  therefrom 
shall  pass  to  or  for  the  use  of  any  father,  mother,  husband,  wife, 
child,  brother,  sister,  wife  or  widow  of  the  son  or  the  husband  of 
the  daughter  or  any  child  or  children  adopted  as  such  in  conform- 
ity with  the  laws  of  the  State  of  Illinois  or  to  any  person  to  whom 
the  deceased,  for  not  less  than  ten  years  prior  to  death,  stood  in 
the  acknowledged  relation  of  a  parent,  or  to  any  lineal  descend- 
ant born  in  lawful  wedlock;  in  every  such  case  the  rate  of  tax 
shall  be  one  dollar  on  every  hundred  dollars  of  the  clear  market 
value  of  such  property  received  by  each  person  and  at  and  after 
the  same  rate  for  every  less  amount,  provided  that  any  estate 
which  may  be  valued  at  a  less  sum  than  twenty  thousand  dollars 
shall  not  be  subject  to  any  such  duty  or  taxes ;  and  the  tax  is  to 
be  levied  in  above  cases  only  upon  the  excess  of  twenty  thousand 
dollars  received  by  each  person.  When  the  beneficial  interests 
to  any  property  or  income  therefrom  shall  pass  to  or  for  the  use 
of  any  uncle,  aunt,  niece,  nephew,  or  any  lineal  descendant  of 
the  same,  in  every  such  case  the  rate  of  such  tax  shall  be  two 
dollars  on  every  one  hundred  dollars  of  the  clear  market  value  of 
such  property  received  by  each  person  on  the  excess  of  two 
thousand  dollars  so  received  by  each  person.  In  all  other  cases 
the  rate  shall  be  as  follows :  On  each  and  every  hundred  dollars 
of  the  clear  market  value  of  all  property  and  at  the  same  rate 
for  any  less  amount;  on  all  estates  of  ten  thousand  dollars  or 
less,  three  dollars;  on  all  estates  of  over  ten  thousand  dollars 
and  not  exceeding  twenty  thousand  dollars,  four  dollars,  and  on 
all  estates  over  twenty  thousand  dollars  and  not  exceeding  fifty 
thousand  dollars,  five  dollars;  and  on  all  estates  over  fifty  thou- 
sand dollars,  six  dollars :  Provided,  that  an  estate  in  the  above 
case  which  may  be  valued  at  a  less  sum  than  five  hundred  dollars 
shall  not  be  subject  to  any  duty  or  tax."^ 

347.  Lineal  descendant — life  estate  or  for  term  of  years — 
rule  as  to  taxation — bond.  Section  (2) :  "When  any  person 
shall  bequeath  or  devise  any  property  or  interest  therein  or  in- 

2 — See  statute  cited  ante  346. 


282  THE  LAW  OF  ESTATES. 

come  therefrom  to  mother,  father,  husband,  wife,  brother  and 
sister,  the  widow  of  the  son  or  a  lineal  descendant  during  the 
life  or  for  a  term  of  years  or  remainder  to  the  collateral  heir  of 
the  decedent,  or  to  the  stranger  in  blood  or  to  the  body  politic 
or  corporate  at  their  decease,  or  on  the  expiration  of  such  term, 
the  said  life  estate  or  estates  for  a  term  of  years  shall  not  be  sub- 
ject to  any  tax  and  the  property  so  passing  shall  be  appraised 
immediately  after  the  death  at  what  was  the  fair  market  value 
thereof  at  the  time  of  the  death  of  the  decedent  in  the  manner 
hereinafter  provided,  and  after  deducting  therefrom  the  value  of 
said  life  estate,  or  term  of  years,  the  tax  transcribed  by  this  act 
on  the  remainder  shall  be  immediately  due  and  payable  to  the 
treasurer  of  the  proper  county,  and,  together  with  the  interests 
thereon,  shall  be  and  remain  a  lien  on  said  property  until  the  same 
is  paid :  Provided,  that  the  person  or  persons  or  body  politic  or 
corporate  beneficially  interested  in  the  property  chargeable  with 
said  tax  elect  not  to  pay  the  same  until  they  shall  come  in  the 
actual  possession  or  enjoyment  of  such  property,  or,  in  that  case 
said  person  or  persons  or  body  politic  or  corporate  shall  give  a 
bond  to  the  people  of  the  State  of  Illinois  in  the  penalty  three 
times  the  amount  of  the  tax  arising  upon  such  estate  with  such 
sureties  as  the  county  judge  may  approve,  conditioned  for  the 
payment  of  the  said  tax  and  interest  thereon  at  such  time  or 
period  as  they  or  their  representatives  may  come  into  the  actual 
possession  or  enjoyment  of  said  property;  which  bond  shall  be 
filed  in  the  office  of  the  county  clerk  of  the  proper  county :  Pro- 
vided further,  that  such  person  shall  make  a  full,  verified  return 
of  said  property  to  said  county  judge,  and  file  the  same  in  his 
office  within  one  year  from  the  death  of  the  decedent,  and  within 
that  period  enter  into  such  securities  and  renew  the  same  for 
five  years.  "2 

348.  What  institutions  exempt  from  such  tax.  Section 
(2i^a)  :  "When  the  beneficial  interests  of  any  property  or  in- 
come therefrom  shall  pass  to  or  for  the  use  of  any  hospital,  re- 

2— Ante    345,    note    (1).      Also     ante  346,  347. 


INHERITANCE  TAX  LAW   OF   ILLINOIS.  283 

ligious,  educational,  bible,  missionary,  tract,  scientific,  benevolent 
or  charitable  purpose,  or  to  any  trustee,  bishop  or  minister  of  any 
church  or  religious  denomination,  held  and  used  exclusively  for 
the  religious,  educational  or  charitable  uses  and  purposes  of  such 
church  or  religious  denomination,  institution  or  corporation,  by 
grant,  gift,  bequest  or  otherwise,  the  same  shall  not  be  subject 
to  any  such  duty  or  tax,  but  this  provision  shall  not  apply  to  any 
corporation  which  has  the  right  to  make  dividends  or  distribute 
profits  or  assets  among  its  members.* 

349.  Taxes — when  payable — penalty.  Section  (3) :  *'A11 
taxes  imposed  by  this  act,  unless  otherwise  herein  provided  for, 
shall  be  due  and  payable  at  the  death  of  the  decedent  and  inter- 
est at  the  rate  of  six  per  cent  per  annum  shall  be  charged  and 
collected  thereon  for  such  time  as  said  taxes  is  not  paid:  Pro- 
vided, that  if  said  tax  is  paid  within  six  months  from  the  accru- 
ing thereof,  interest  shall  not  be  charged  or  collected  thereon, 
but  a  discount  of  five  per  cent  shall  be  allowed  and  deducted  from 
said  tax,  and  in  all  cases  where  the  executors,  administrators  or 
trustees  do  not  pay  such  tax  within  one  year  from  the  death  of 
the  decedent,  they  shall  be  required  to  give  a  bond  in  the  form 
and  to  the  effect  prescribed  in  section  2  of  this  act  for  the  pay- 
ment of  said  tax,  together  with  interest."^ 

350.  Inheritance  tax — ^when,  how  and  by  whom  paid.  Sec- 
tion (4)  :     "Any  administrator,  executor  or  trustee  having  any 

.  charge  or  trust  in  legacies  or  property  for  distribution  subject  to 
the  said  tax  shall  deduct  the  tax  therefrom,  or  if  the  legacy  or 
property  be  not  money  he  shall  collect  a  tax  thereon  upon  the 
appraised  value  thereof  from  the  legatee  or  person  entitled  to 
such  property,  and  he  shall  not  deliver  or  be  compelled  to  deliver 
any  specific  legacy  or  property  subject  to  tax  to  any  person  until 
he  shall  have  collected  the  tax  thereon;  and  whenever  any  such 
legacy  shall  be  charged  upon  or  payable  out  of  real  estate  the 

4 — Statute  cited   ante  345,   note     July    1,    1901.      Laws   of   1901,    p. 
(1);   Sec.    (2y2a):     Added  by  act     268. 
approved  May  10,  1901.     In  force         5 — Ante  345,  note  (1). 


284  THE  LAW  OF  ESTATES. 

heir  or  devisee  before  paying  the  same  shall  deduct  said  tax  there- 
from, and  pay  the  same  to  the  executor,  administrator  or  trustee, 
and  the  same  shall  remain  a  charge  on  such  real  estate  until  paid, 
and  the  payment  thereof  shall  be  enforced  by  the  executor,  ad- 
ministrator or  trustee  in  the  same  manner  that  the  said  payment 
of  said  legacies  might  be  enforced,  if,  however,  such  legacy  be 
given  in  money  to  any  person  for  a  limited  period,  he  shall  retain 
the  tax  upon  the  whole  amount,  but  if  it  be  not  money  he  shall 
make  application  to  the  court  having  jurisdiction  of  his  accounts, 
to  make  an  apportionment  if  the  case  requires  it  of  the  sum  to  be 
paid  into  his  hands  by  such  legatees,  and  for  such  further  order 
relative  thereof  as  the  case  may  require."^ 

351.  Powers  of  executors  and  administrators.  Section  (5) : 
"All  executors,  administrators  and  trustees  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable 
them  to  pay  said  tax,  in  the  same  manner  as  they  may  be  enabled ' 
to  do  by  law  for  the  payment  of  duties  of  their  testators  and  in- 
testates, and  the  amount  of  said  tax  shall  be  paid  as  hereinafter 
directed. '  ''^ 

352.  Tax  to  be  paid  to  treasurer — sealed  receipt.  Section 
(6)  :  ''Every  sum  of  money  retained  by  any  executor,  adminis- 
trator or  trustee,  or  paid  into  his  hands  for  any  tax  on  any 
property,  shall  be  paid  by  him  within  thirty  days  thereafter  to 
the  treasurer  of  the  proper  county,  and  the  said  treasurer  or 
treasurers  shall  give,  and  every  executor,  administrator  or  trus- 
tee shall  take,  duplicate  receipts  from  him  of  said  payments,  one 
of  which  receipts  he  shall  immediately  send  to  the  State  Treas- 
urer, whose  duty  it  shall  be  to  charge  the  treasurer  so  receiving 
the  tax  with  the  amount  thereof,  and  shall  seal  said  receipt  with 
the  seal  of  his  office  and  countersign  the  same  and  return  it  to 
the  executor,  administrator  or  trustee,  whereupon  it  shall  be  a 
proper  voucher  in  the  settlement  of  his  accounts ;  but  the  execu- 
tor, administrator  or  trustee  shall  not  be  entitled  to  credit  in  his 
accounts  or  be  discharged  from  liability  for  such  tax  unless  he 

6— Ante  345,  note  (1).  7— Ante  345,  note  (1). 


INHERITANCE  TAX  LAW  OF   ILLINOIS.  285 

shall   purchase   a  receipt   so   sealed   and   countersigned  by  the 
treasurer  and  a  copy  thereof  certified  by  him."^ 

353.  When  real  estate  liable  to  tax — duty  of  executor — 
information  in  writing  to  the  treasurer.  Section  (7) :  "When- 
ever any  of  the  real  estate  of  which  any  decedent  may  die  seized 
shall  pass  to  any  body  politic  or  corporate,  or  to  any  person  or 
persons,  or  in  trust  for  them,  or  some  of  them,  it  shall  be  the 
duty  of  the  executor,  administrator  or  trustee  of  such  decedent 
to  give  information  thereof  in  v^riting  to  the  treasurer  of  the 
county  where  said  real  estate  is  situated,  within  six  months  after 
they  undertake  the  execution  of  their  expected  duties,  or  if  the 
fact  be  not  known  to  them  within  that  period,  then  within  one 
month  after  the  same  shall  have  come  to  their  knowledge."^ 

354.  When  portion  of  tax  repaid  to  legatee — who  has  to 
refund  a  portion  of  the  legacy.  Section  (8)  :  "Whenever 
debts  shall  be  proved  against  the  estate  of  the  decedent  after 
distribution  of  the  legacies  from  which  the  inheritant  (inheri- 
tance) tax  has  been  deducted  in  compliance  with  this  act,  and 
the  legatee  is  required  to  refund  any  portion  of  the  legacy,  a  pro- 
portion of  the  said  tax  shall  be  repaid  to  him  by  the  executor  or 
administrator  if  the  said  tax  has  not  been  paid  into  the  state  or 
county  treasury,  or  by  the  county  treasurer  if  it  has  been  so 
paid.  "10 

355.  Foreign  executor  or  administrator — property  in  the 
state.  Section  (9)  :  "Whenever  any  foreign  executor  or  ad- 
ministrator shall  assign  or  transfer  any  stocks  or  loans  in  this 
state  standing  in  the  name  of  decedent,  or  in  trust  for  a  decedent, 
which  shall  be  liable  to  the  said  tax,  such  tax  shall  be  paid  to  the 
treasury  or  treasurer  of  the  proper  county  on  the  transfer  thereof, 
otherwise  the  corporation  forming  such  transfer  shall  become 
liable  to  pay  such  taxes,  provided  that  such  corporation  has 
knowledge  before  such  transfer  that  said  stocks  or  loans  are  liable 
to  such  taxes.  "^^ 

8— Ante  345,  note  (1).  10— Ante  345,  note  (1). 

9— Ante  345,  note  (1).  11— Ante  345,  note  (1). 


2«6  THE  LAW  OF  ESTATES. 

356.  When  tax  paid  erroneously.  Section  (10):  "When 
any  amount  of  said  tax  shall  have  been  paid  erroneously  to  the 
State  Treasurer,  it  shall  be  lavvful  for  him  on  satisfactory  proof 
rendered  to  him  by  said  county  treasurer  of  said  erroneous  pay- 
ments to  refund  and  pay  to  the  executor,  administrator  or  trus- 
tee, person  or  persons  who  have  paid  any  such  tax  in  error  the 
amount  of  such  tax  so  paid,  provided  that  all  applications  for 
the  payment  of  said  tax  shall  be  made  within  two  years  from  the 
date  of  said  payment.  "12 

357.  How  value  of  property  fixed.  Section  (11) :  ''In  order 
to  fix  the  value  of  property  of  persons  whose  estate  shall  be 
subject  to  the  payment  of  said  tax,  the  county  judge,  on  applica- 
tion of  any  interested  party,  or  upon  his  own  motion,  shall  ap- 
point some  competent  person  as  appraiser  as  often  as  or  when- 
ever occasion  may  require,  whose  duty  it  shall  be  forthwith  to 
give  such  notice  by  mail,  to  all  persons  known  to  have  or  claim 
an  interest  in  such  property,  and  to  such  persons  as  the  county 
judge  may,  by  order  direct,  of  the  time  and  place  he  will  ap- 
praise such  property,  and  at  such  time  and  place  to  appraise  the 
same  at  a  fair  market  value,  and  for  that  purpose  the  appraiser 
is  authorized,  by  leave  of  the  county  judge,  to  use  subpoenas  for 
and  to  compel  the  attendance  of  witnesses  before  him,  and  to 
take  the  evidence  of  such  witnesses  under  oath  concerning  such 
property  and  the  value  thereof,  and  he  shall  make  a  report 
thereof  and  of  such  value  in  writing  to  said  county  judge,  with 
the  depositions  of  the  witnesses  examined  and  such  other  facts 
in  relation  thereto  and  to  said  matters  as  said  county  judge  may, 
by  order,  require  to  be  filed  in  the  office  of  the  clerk  of  said 
county  court,  and  from  this  report  the  said  county  judge  shall 
forthwith  assess  and  fix  the  then  cash  value  of  all  estates,  an- 
nuities and  life  estates  or  terms  of  years  growing  out  of  said 
estate,  and  the  tax  to  which  the  same  is  liable,  and  shall  imme- 
diately give  notice  by  mail  to  all  parties  known  to  be  interested 
therein.     Any  person  or  persons  dissatisfied  with  the  appraise- 

12— Ante  345,  note  (1).         • 


INHERITANCE  TAX  LAW  OF   ILLINOIS.  287 

ment  or  assessment  may  appeal  therefrom  to  the  county  court 
of  the  proper  county  within  sixty  days  after  the  making  and 
filing  of  such  appraisement  or  assessment  on  paying  or  giving 
security  satisfactory  to  the  county  judge  to  pay  all  costs,  to- 
gether with  whatever  taxes  shall  be  fixed  by  said  court.  The 
said  appraiser  shall  be  paid  by  the  county  treasurer  out  of 
any  funds  he  may  have  in  his  hands  on  account  of  the  inheri- 
tance tax,  as  by  law  provided,  on  the  certificate  of  the  county 
judge,  such  compensation  as  such  judge  may  deem  just  for  said 
appraiser's  services  as  sucli  appraiser,  not  to  exceed  ten  dollars 
per  day  for  each  day  actually  and  necessarily  employed  in  said 
appraisement,  together  with  his  actual  and  necessary  traveling 
expenses  and  disbursements,  including  such  witness  fees  paid  by 
him.  "13 

358.  Clerk's  fees.  Section  (lli/o)  :  ''The  fees  of  the  clerk 
of  the  eoimty  court  in  inheritance  tax  matters  in  the  respective 
counties  of  this  state,  as  classified  in  the  act  concerning  fees 
and  salaries,  shall  be  as  follows:  In  counties  of  the  first  and 
second  class,  for  services  in  all  proceedings  in  each  estate  before 
the  county  judge,  the  clerk  shall  receive  a  fee  of  five  dollars. 
In  all  such  proceedings  in  counties  of  the  third  class,  the  cierk 
shall  receive  a  fee  of  ten  dollars.  Such  fees  shall  be  paid  by  the 
county  treasurer,  on  the  certificate  of  the  county  judge,  out 
of  any  money. in  his  hands,  on  account  of  said  tax.  In  counties 
of  the  third  class,  the  Attorney  General  of  (the)  state  may 
appoint  an  attorney,  who  shall  be  known  as  the  "inheritance  tax 
attorney,"  and  whose  salary  shall  be  not  to  exceed  three  thou- 
sand dollars  per  year,  payable  monthly  out  of  the  state  treas- 
ury upon  warrants  drawn  by  the  auditor  of  public  accounts,  on 
vouchers  approved  by  the  Attorney  General.  In  counties  of  the 
third  class,  the  clerk  of  the  county  court  may  appoint  a  clerk 
in  the  ofiice  of  the  clerk  of  said  court,  to  be  known  as  the  "in- 
heritance tax  clerk,"  Avhose  compensation  shall  be  fixed  by  the 

13 — As  amended  by  act  approved  1901.  Laws  of  1901,  p.  269.  See 
May   10,    1901.     In   force   July    1,     statute  cited  ante  345,  note  (1). 


288  THE  LAW  OF  ESTATES. 

county  judge,  not  to  exceed  fifteen  hundred  dollars  per  year, 
and  not  to  exceed  the  fee  earned  in  said  office  in  inheritance  tax 
matters,  the  surplus  of  such  fees  over  said  compensation  so 
fixed  to  be  turned  into  the  county  treasury.  In  addition  to  the 
above,  the  clerk  of  the  county  court  shall  be  entitled,  in  all  suits 
brought  for  the  collection  of  delinquent  inheritance  tax,  and  all 
contested  inheritance  tax  cases  appealed  from  the  county  judge 
to  the  county  court,  and  in  all  appeals  from  the  county  court  to 
the  supreme  court,  the  same  fees  as  are  now,  or  which  may 
hereafter  be,  allowed  by  law  in  suits  at  law,  or  in  the  matter  of 
appeals  at  law,  to  or  from  the  county  court,  which  fees  shall  be 
taxed  as  costs  and  paid  as  in  other  cases  at  law;  and  in  all  cases 
arising  under  this  act,  including  certified  copies  of  documents  or 
records  in  his  office,  for  which  no  specified  fees  are  provided,  the 
clerk  of  the  county  court  shall  charge  against  and  collect,  from 
the  person  applying  for,  or  entitled  to  such  service,  or  certified 
copies,  the  same  fees  as  are  now,  or  which  may  hereafter  be,  al- 
lowed for  similar  services  or  certified  copies  in  other  cases  in 
said  court,  and  for  recording  inheritance  tax  receipts  required  to 
be  recorded  in  his  office,  he  shall  receive  the  same  fees  which  now 
are,  or  hereafter  may  be,  allowed  by  law  to  the  recorder  of  deeds 
for  recording  similar  instruments."^* 

359.  Appraisers  taking  fee  or  reward — penalty.  Section 
(12)  :  "Any  appraiser  appointed  by  this  act  who  shall  take 
any  fee  or  reward  from  any  executor,  administrator,  trustee, 
legatee,  next  of  kin  or  heir  of  any  decedent,  or  from  any  other 
person  liable  to  pay  said  tax  or  any  portion  thereof,  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  in  any  court  hav- 
ing jurisdiction  of  misdemeanors  he  shall  be  fined  not  less  than 
two  hundred  and  fifty  dollars  nor  more  than  five  hundred  dollars 
and  imprisoned  not  exceeding  ninety  days;  and  in  addition 
thereto  the  county  judge  shall  dismiss  him  from  such  service.  "^^ 

14 — Sec.  (11%)  added  to  act,  ap-     See  statute   cited   ante   345,   note 
proved    May    10,    1901.      In    force      (1). 
July  1,  1901.    Laws  of  1901,  p.  270.         15— Ante  345,  note  (1). 


INHERITANCE   TAX   LAW   OF   ILLINOIS.  289 

360.  Jurisdiction  of  County  Court.  Section  (13) :  "The 
county  court  in  the  county  in  which  the  real  property  is  situated 
of  the  decedent  who  was  not  a  resident  of  the  state  or  in  the 
county  of  which  the  deceased  was  a  resident  at  the  time  of  his 
death,  shall  have  jurisdiction  to  hear  and  determine  all  questions 
in  relation  to  the  tax  arising  under  the  provisions  of  this  act, 
and  the  county  court  first  acquiring  jurisdiction  hereunder  shall 
retain  the  same  to  the  exclusion  of  every  other.  "^^ 

361.  Proceedings  when  tax  has  not  been  paid.  Section  (14) : 
If  it  shall  appear  to  the  county  court  that  any  tax  accruing 
under  this  act  has  not  been  paid  according  to  law,  it  shall  issue 
a  summons  summoning  the  persons  interested  in  the  property 
liable  to  the  tax  to  appear  before  the  court  on  a  day  certain  not 
more  than  three  months  after  the  date  of  such  summons,  to  show 
cause  why  said  tax  should  not  be  paid.  The  process,  practice 
and  pleadings,  and  the  hearing  and  determination  thereof,  and 
the  judgment  in  said  court  in  such  cases  shall  be  the  same  aa 
those  now  provided,  or  which  may  hereafter  be  provided  in  pro- 
bate cases  in  the  county  courts  in  this  state,  and  the  fees  and 
costs  in  such  cases  shall  be  the  same  as  in  probate  cases  in  the 
county  courts  of  this  state.  "^'^ 

362.  Duty  of  officers  when  tax  not  paid.  Section  (15) : 
"Whenever  the  treasurer  of  any  county  shall  have  reason  to 
believe  that  any  tax  is  due  and  unpaid  under  this  act,  after  the 
refusal  or  neglect  of  the  person  interested  in  the  property  liable 
to  pay  said  tax  to  pay  the  same,  he  shall  notify  the  state's  attor- 
ney of  the  proper  county,  in  writing,  of  such  refusal  to  pay  said 
tax  and  the  state's  attorney  so  notified  if  he  has  proper  cause  to 
believe  a  tax  is  due  and  unpaid  shall  prosecute  the  proceedings 
in  the  county  court  in  the  proper  county  as  provided  in  section 
14  of  this  act  for  the  enforcement  and  collection  of  such  tax,  and 
in  such  case  said  court  shall  allow  as  costs  in  the  said  case  such 
fees  to  said  attorney  as  he  may  deem  reasonable.  "^^ 

16— Ante  345,  note  (1).  18— Ante  345,  note  (1), 

11-- Ante  345,  note  (1). 
19 


290  THE  LAW  OF  ESTATES. 

363.  Statement  in  writing.  Section  (16) :  "The  county- 
judge  and  county  clerk  of  each  county  shall  every  three  months 
make  a  statement  in  writing  to  the  county  treasurer  of  the 
county  of  the  property  from  wliieh  or  the  party  from  whom  he 
has  reason  to  believe  a  tax  under  this  act  is  due  and  unpaid.  "^^ 

364.  Expenses  of  proceedings.  Section  (17):  "Whenever 
the  county  judge  of  any  county  shall  certify  that  there  was 
probable  cause  for  issuing  a  summons  and  taking  the  proceedings 
specified  in  section  fourteen  of  this  act  the  State  Treasurer  shall 
pay  or  allow  to  the  treasury  of  any  county  all  expenses  incurred 
for  service  of  summons  and  his  other  lawful  disbursements  that 
has  not  otherwise  been  paid.  "2*^ 

365.  Book  to  be  kept  in  the  office  of  the  county  judge.  Sec- 
tion (18):  "The  treasurer  of  the  state  shall  furnish  to  each 
county  judge  a  book  in  which  he  shall  enter  the  returns  made  by 
appraisers,  the  cash  value  of  annuities,  life  estates  and  terms  of 
years  and  other  property  fixed  by  him,  and  the  tax  assessed 
thereon  and  the  amounts  of  any  receipts  for  payments  thereof 
filed  with  him,  which  books  shall  be  kept  in  the  office  of  the 
county  judge  as  a  public  record."-^ 

366.  Treasurer  to  pay  the  state  treasurer  all  taxes.  Section 
(19)  :  "The  treasurer  of  each  county  shall  collect  and  pay  the 
State  Treasurer  all  taxes  that  may  be  due  and  payable  under  this 
act,  who  shall  give  him  a  receipt  therefor,  of  which  collection 
and  payment  he  shall  make  a  report  under  oath  to  the  Auditor 
of  Public  Accounts  on  the  first  Monday  in  March  and  Septem- 
ber of  each  year,  stating  for  what  estate  paid  and  in  such  form 
and  containing  such  particulars  as  the  Auditor  may  prescribe; 
and  for  all  said  taxes  collected  by  him  and  not  paid  to  the  State 
Treasurer  by  the  first  Monday  of  October  and  April  of  each  year, 
he  shall  pay  interest  at  the  rate  of  ten  per  cent  per  annum.  "22 

367.  Treasurer's  commission  or  salary.  Section  (20)  :  "The 
treasurer  of  each  county  shall  be  allowed  to  retain  two  per  cent 

IQ—Ante  345,  note  (1).  21— Ante  345,  note  (1). 

20— Ante  345,  note.(l).  22— A7ite  345,  note  (1). 


INHERITANCE   TAX  LAW  OF   ILLINOIS.  291 

on  all  taxes  paid  and  accounted  for  by  him  under  this  act  in 
full  for  his  services  in  collecting  and  paying  the  same  in  addi- 
tion to  his  salaiy  or  fees  now  allowed  by  law.  "23 

368.  Receipt.  Section  (21)  :  "Any  person  or  body  politic 
or  corporate  shall,  upon  the  payment  of  the  sum  of  fifty  cents, 
be  entitled  to  a  receipt  from  the  county  treasurer  of  any  county 
or  the  copy  of  the  receipt  at  his  option  that  may  have  been 
given  by  said  treasurer  for  the  pajnnent  of  any  tax  under  this 
act  to  be  sealed  with  the  seal  of  his  office,  which  receipt  shall 
designate  on  what  real  property,  if  any,  of  which  any  deceased 
may  have  died  seized,  said  tax  has  been  paid  and  by  whom  paid, 
and  whether  or  not  it  is  in  full  of  said  tax  and  said  receipt  may 
be  recorded  in  the  clerk 's  office  of  said  county  in  which  the  prop- 
erty may  be  situated  in  the  book  to  be  kept  by  said  clerk  for 
such  purpose.  "24 

369.  Proceedings  to  test  whether  property  is  liable  to  the 
tax.  Section  (2I14)  :  "When  any  person  interested  in  any 
property  in  this  state,  which  shall  pass  by  will  or  the  intestate 
laws  of  this  state,  shall  deem  the  same  not  subject  to  any  tax  un- 
der this  act,  he  may  file  his  petition  in  the  county  court  of  the 
proper  county  to  determine  whether  said  property  is  subject  to 
the  tax  herein  provided,  in  which  petition  the  county  treasurer 
and  all  persons  known  to  have  or  claim  any  interest  in  said 
property  shall  be  made  parties.  The  county  court  may  hear  the 
said  cause  upon  the  relation  of  the  parties  and  the  testimony  of 
witnesses,  and  evidence  produced  in  open  court,  and,  if  the  court 
shall  find  said  property  is  not  subject  to  any  tax,  as  herein  pro- 
vided, the  court  shall,  by  order,  so  determine;  but  if  it  shall 
appear  that  said  property,  or  any  part  thereof,  is  subject  to  any 
such  tax,  the  same  shall  be  appraised  and  taxed  as  in  other 
cases.  An  adjudication  by  the  county  court,  as  herein  provided, 
shall  be  conclusive  as  to  the  lien  of  the  tax  herein  provided  upon 
said  property,  subject  to  appeal  to  the  supreme  court  of  the 
state  by  the  county  treasurer,  or  Attorney  General  of  the  state, 

23— Ante  345,  note  (1).  2i—Ante  345,  note  (1). 


292  THE  LAW  OF  ESTATES. 

in  behalf  of  the  people,  or  by  any  party  having  an  interest  in 
said  property.  The  fees  and  costs  in  all  eases  arising  under  this 
section  shall  be  the  same  as  are  now,  or  may  hereafter  be,  allowed 
by  law  in  cases  at  law  in  the  county  court. '  '^s 

370.  Lien  of  the  collateral  inheritance  tax.  Section  (22) : 
"The  lien  of  the  collateral  inheritance  tax  shall  continue  until 
the  said  tax  is  settled  and  satisfied:  Provided,  that  said  lien 
shall  be  limited  to  the  property  chargeable  therewith;  and,  pro- 
vided further,  that  all  inheritance  taxes  shall  be  sued  for  within 
five  years  after  they  are  due  and  legally  demandable,  otherwise 
they  shall  be  presumed  to  be  paid  and  cease  to  be  a  lien  as 
against  any  purchasers  of  real  estate.  "^^ 

371.  Repeal.  Section  (23)  :  "All  laAvs  or  parts  of  laws 
inconsistent  herewith  be  and  the  same  are  hereby  repealed.  "^7 

372.  The  act  declared  constitutional.  In  the  case  of  Koch- 
ersperger  v.  Drake,^^  the  court  holds  the  inheritance  act  to  be 
consistent  with  the  constitution  of  the  State  of  lUinois.^^  It 
is  said  in  the  opinion  of  the  court :  Laws  of  this  character  have 
been  sustained  in  Pennsylvania,  New  York,  Maryland,  Virginia, 
North  Carolina  and  other  states.  They  have  been  held  invalid 
in  New  Hampshire  and  Ohio  and  some  other  states.  We  are  not 
disposed  to  enter  into  an  analysis  of  these  cases  and  a  considera- 
tion of  the  principles  on  which  they  have  been  decided.  The 
broad  principle  presented  is,  that  the  legislature  may  create  new 
classes  of  property  with  reference  to  estates,  under  which  they 
may  regulate  the  right  to  inherit  or  devise  and  take  under  de- 
vise, and  such  right  existing,  such  classes  may  be  created,  and 
as  created  may  be  uniform,  and  the  assessment  by  valuation, 

25 — Sec.  (211/2)  added  by  act  ap-  Article  9,  Sections  1  and  2;  Starr 

proved    May    10,    1901.      In    force  &    Curtis    Annotated    Statutes    of 

July  1,  1901.    Laws  of  1901,  p.  271.  Illinois,  with  Jones  &  Addington's 

See  ante  345,  note  (1).  Supplements    thereto.      Vol.    1,    p. 

26 — Ante  345,  note  (1).  165;  Vol.  4,  p.  15,  and  authorities 

27 — Ante  345,  note  (1).  cited  under  sections  noted.  Hurd'a 

28—167  111.  122.  R.  S.  of  111.  1905,  pp.  68,  69. 

29— Constitution  of  Illinois  1870, 


INHERITANCE  TAX  LAW  OF  ILLINOIS.  293 

when  declared  to  operate  equally  on  the  right  of  succession  to 
such  classes,  is  not  a  violation  of  the  provisions  of  the  sections  of 
Article  9  of  the  constitution  of  the  State  of  Illinois. 

373.  Laws  governing  descent  and  devise  of  property  in  Illi- 
nois are  wholly  statutory  and  may  be  changed  by  the  legisla- 
ture at  discretion.  The  reasoning  of  the  court  in  the  case  of 
Eochersperger  v.  Drake,^^  affords  a  good  illustration  of  the 
right  of  any  state  where  the  constitution  permits,  to  pass  laws 
taxing  gifts,  legacies  and  inheritances.  "The  laws  of  descent 
and  the  right  to  devise  and  take  under  a  will  within  the 
State  of  Illinois  owe  their  existence  to  the  statute  law  of  the 
state.  The  right  to  inherit  and  the  right  to  devise  being  depend- 
ent on  legislative  acts,  there  is  nothing  in  the  constitution  of 
this  state  which  prohibits  a  change  of  the  law  with  reference  to 
those  subjects  at  the  discretion  of  the  law-making  power.  The 
laws  of  descent  and  devise  being  the  creation  of  the  statute  law, 
the  power  which  creates  may  regulate  and  may  impose  condi- 
tions or  burdens  on  a  right  of  succession  to  the  ownership  of 
property  to  which  there  has  ceased  to  be  an  owner  because  of 
death,  and  the  ownership  of  which  the  state  then  provides  for 
by  the  law  of  descent  or  devise.  The  imposition  of  such  a  con- 
dition or  burden  is  not  a  tax  upon  the  property  itself,  but  on 
the  right  of  succession  thereto.  To  deny  the  right  of  the  state 
to  impose  such  burden,  is  to  deny  its  authority  to  regulate  the 
administration  of  decedent's  estate. 

374.  Domicile — when  party  is  a  resident  within  the  mean- 
ing of  the  inheritance  tax  act — what  constitutes  legal  residence 
under  the  act.  The  "residence"  in  Illinois  contemplated  by 
the  Inheritance  Tax  act  is  synonymous  with  "domicile"  or 
"abode."  To  bring  about  a  change  of  residence  there  must 
not  only  be  an  intention  to  make  the  change,  but  the  same  must 
be  actually  effected  by  abandoning  the  old  residence  and  per- 
manently locating  in  a  new  one.    One  who  has  decided  to  move 

30—167  111.  122;  Ayers  v.  Chica-     go  Title  and  Trust  Co.,  187  111.  42. 


294  THE  LAW  OP  ESTATES. 

from  Illinois  to  the  home  of  his  daughter  in  another  state  as 
soon  as  his  business  is  settled,  but  in  the  meantime  is  taken  ill 
and  is  taken  by  his  daughter  to  her  home  for  medical  treatment 
and  care,  where  he  dies  within  a  short  time,  will  be  deemed  a 
resident  of  Illinois  at  the  time  of  his  death,  within  the  mean- 
ing of  the  Inheritance  Tax  act,  where  it  appears  such  change 
was  not  expected  to  be  permanent,  everything  being  left  undis- 
turbed at  the  old  home.^i 

375.  Time  when  tax  accrues  and  becomes  payable.  Gen- 
erally speaking  an  appraisal  of  an  estate  under  the  Inheritance 
Tax  act  is  to  be  made  as  of  the  date  of  the  testator's  death.  As 
to  estates  in  remainder  not  contingent,  the  appraisal  is  to  be 
made  as  of  the  date  of  the  testator's  death,  and  not  at  the  death 
of  the  life  tenant.  Ayers  v.  Chicago  Title  and  Trust  Co.^^ 
This  case  holds  that  the  statute  imposing  a  tax  on  property 
passing  by  will  or  descent,  and  providing  that  taxes  on  estates 
in  remainder,  shall  be  immediately  due  and  payable  after  ap- 
praisal; unless  the  remaindermen  "elect  not  to  pay  the  same 
until  they  shall  come  into  actual  possession;  and  where  remain- 
dermen do  not  or  cannot  make  an  election,  the  tax  on  the  re- 
mainder becomes  immediately  due  and  payable.  And  in  that 
case,  the  tax  was  held  to  take  effect  though  the  remaindermen 
could  not  be  individually  identified  until  the  termination  of  the 
life  estate,  which  upon  the  death  of  the  life  tenant  was  to  go 
to  trustees,  to  be  divided  according  to  the  inheritance  laws. 
But  where  remote   and  contingent  interests  are  incapable   of 

31— People  V.  Moir,  207  111.  180;  People,   189    111.   472;    Magoun   v. 

10  Am.  &  Eng.  Ency.  of  Law,  2d  111.  Trust  and   Savings  Bank,  170 

ed.,  p.  9;   Cooley  on  Taxation,  2d  U.  S.  283;   Peoria  Gaslight  Co.  v. 

ed.,  p.  369;   Thorndyke  v.  City  of  Peoria  Terminal  Ry.  Co.,  146  111. 

Boston,    1    Mete.    242;     Hayes    v.  372-377.     The    rule    was    adopted 

Hayes,    74    111.    312;    Du    Puy    v.  where  the  appraiser  based  his  ap- 

Wurtz,    53    N.   Y.    556;    People   v.  praisal  upon  public  sales  of  securi- 

Moir,  207  111.  App.  188-189.  ties  at  the  Stock  Exchange.    In  re 

32—187  111.  42;  see  also  the  fol-  Gould   Estate,   46   N.   Y.    Sup.   Ct. 

lowing     cases:     Walker     v.     The  506;    People   v.    Coleman,    107    N. 

People,    192    111.    106;    Billings   v.  Y.  544. 


INHERITANCE   TAX   LAW   OF   ILLINOIS.  295 

valuation,  and  as  to  which  the  rate  and  the  exemption  cannot 
be  determined,  the  denial  of  the  state  to  impose  such  a  burden 
or  condition  is  to  deny  the  right  of  the  state  to  regulate  the 
administration  of  a  decedent's  estate." 

376.  The  jurisdiction  and  powers  conferred  upon  the  County 
Court  and  the  judge  thereof  under  the  inheritance  tax  act  have 
been  upheld.  The  power  conferred  by  the  legislature  upon 
the  county  court  and  judge  thereof,  to  make  the  appraisement 
and  assessment  under  the  inheritance  tax  law,  also  the  power 
conferred  upon  said  court  and  judge  thereof,  to  ascertain  and 
determine  the  character  of  any  hospital,  religious,  educational, 
bible,  missionary,  tract,  scientific,  benevolent  or  charitable  in- 
stitution, etc.,  made  the  beneficiary  under  any  will,  and  to  find 
the  fact  whether  such  institutions  are  making  dividends  or 
distributing  profits  or  assets  among  its  members,  has  been  up- 
held in  the  ease  of  Provident  Hospital  mid  Training  School  v. 
The  People?^  And  it  is  held  in  the  case  cited,  the  tax  may 
be  enforced  even  though  the  will  was  not  probated  before  the 
amendatory  act  of  1901,  took  effect.  The  testator  died  June  7, 
1901,  making  the  hospital  named  his  residuary  legatee.  The 
will  was  probated  July  10,  1901,  and  proceedings  for  the 
appraisement  of  the  property  according  to  section  11  was  taken 
on  November  4th,  1901.  The  act  section  367a  (2I/2),  post,  ap- 
proved May  10,  1901,  in  force  July  1,  1901,  exempting  certain 
institutions  from  such  tax,  except  "those  which  have  the  right 
to  make  dividends  or  distribute  profits  or  assets  among  its 
members."  The  court  holding,  a  tax  under  the  inheritance  tax 
law  becomes  due  and  payable  at  the  death  of  the  testator;  and 
hence  if  the  testator  died  before  the  amendatory  act  of  1901, 
exempting  legacies  to  hospitals,  took  effect,  the  county  court  has 
power  to  make  the  appraisement  and  assessment  upon  a  legacy 
to  a  hospital,  given  by  the  will,  and  the  tax  may  be  enforced 

33— Provident       Hospital       and     198    111.    495;    Sherrell    v.    Christ's 
Training    School    v.    The    People,     Church  of  Poughkeepsie,  121  N.  Y. 

70L 


296  THE  LAW  OF  ESTATES. 

even   though  the  will   was   not  probated   before   the   act   took 
effeet.34 

377.  Fair  market  value,  cash  value — appraisement.  In  Wal- 
ker V.  People,^^  it  is  said:  "The  Inheritance  Tax  law  provides 
the  method  and  machinery  for  the  valuation  of  property  coming 
within  the  operation  of  the  law.  Section  (1)  atite  346  of  the 
statute  uses  the  expression  "clear  market  value  of  such  prop- 
erty received  by  each  person."  Section  (11)  ante  357  uses  the 
phrases  "value,"  "fair  market  value,"  and  "cash  value." 
In  arriving  at  the  fair  value  of  property,  the  appraiser,  under 
the  act,  has  to  be  guided  by  the  fair  market  value  thereof, 
and  in  ascertaining  the  same  is  authorized  to  call  witnesses  for 
that  purpose.  Under  the  act,  the  appraiser  and  the  county 
judge  and  the  county  court  are  not  limited  in  the  valuation  of 
property  to  the  market  quotations  of  the  same,  but,  for  the 
purpose  of  finding  the  fair  cash  value  of  the  same,  they  may  use 
the  quotations  of  the  same  on  the  public  exchanges,  private  sales 
of  such  property,  testimony  as  to  the  actual  value  of  the  same,  and 
their  own  knowledge  of  the  subject  matter.  "Fair  market  value" 
has  never  been  construed  to  mean  the  selling  price  of  property  at 
a  forced  or  involuntary  sale.^^  The  fair  market  value  of  shares 
of  stock  in  corporations,  under  the  inheritance  tax  law,  is  not 

34 — Provident       Hospital       and  nois    which    would    authorize    the 

Training  School  v.  The  People,  198  imposition  of  an  inheritance  tax, 

111.  495.    In  the  case  of  Connell  v.  is    one    of    "practical    and    actual 

Crosby,    210    111.    380,    and    cases  ownership — the  possession  of  a  ti- 

cited    in   the   opinion,   it   is   held,  tie  to  something  that  can  be  con- 

the  section  of  the  act  in  question,  veyed."     The  court  repeating  the 

exempting     educational     bequests  language  of  Mr.  Justice  Finch,  In 

from  such  tax,  is  not  retroactive,  re    Hoffman's    Estate,    143    N.    Y. 

In  Billings  v.  The  People,  189  111.  327:     "The  state  will  get  its  tax 

472,  it  is  held,  that  an  assessment  when  the  legatees  get  their  prop- 

of   the    tax    should    be    postponed  erty." 
until  the  interest  passing  is  capa-         35 — 192  HI.,  page  110. 
ble  of  valuation.     In  the  case  of        36 — Peoria  Gaslight  Co.  v.  Peo- 

The  People  v.  McCormick,  208  111.  ria  Terminal  Railway  Co.,  146  111. 

443-444,   it   is  held,   the   condition  372.    In  re  Gould's  Estate,  46  N.  Y. 

contemplated  by  the  statute  of  Illi-  Sup.  Ct.   506;    People  v.  Coleman, 

107  N.  Y.  544. 


INHERITANCE  TAX  LAW  OF  ILLINOIS.  297 

wliat  they  would  bring  at  a  forced  sale  if  all  should  be  put  on 
the  market  at  once,  but  what  they  would  bring  at  a  sale  at  or 
about  the  time  of  the  testator's  death,  after  due  notice,  under 
fair  conditions  and  in  the  ordinary  course  of  business.^ '^  In 
the  case  of  Ayers  v.  Chicago  Title  and  Trust  Co.,^^  it  is  said: 
It  is  the  duty  of  the  court  to  fix  the  cash  value  of  all  estates, 
annuities,  life  estates  or  for  a  term  of  years,  and  the  tax  to 
which  they  are  liable;  and  hence  the  appraisement  should  show 
the  value  of  the  estate  received  by  each  residuary  legatee  under 
the  will,  after  deducting  the  value  of  all  gifts  and  legacies 
preceding  the  residuary  clause. 

378.  Property  and  interest  therein  liable  to  tax.  Under  the 
inheritance  tax  act,  all  property  passing  by  will  or  descent  is 
liable  to  be  taxed.  Thus  an  estate  for  life,  or  remainder,  whether 
vested  or  contingent,  is  liable  for  such  tax.^^  As  between  the 
widow  and  the  state,  the  law  will  tax  the  dower  interest  whether 
the  widow  accepts  a  devise  for  her  benefit,  or  elects  to  take 
dower  in  lieu  thereof. ^°  Section  2,  providing  "that  when  any 
person  shall  devise  any  property  to  mother,  father,  husband, 
wife,  brother  and  sister,  the  widow  of  the  son,  or  a  lineal 
descendant,  during  the  life  or  for  a  term  of  years,"  or  "re- 
mainder to  the  collateral  heir  of  the  decedent,  or  to  a  stranger 
in  blood,  or  to  the  body  politic  or  corporate,  at  their  decease 
or  on  the  expiration  of  such  term,  the  life  estate  or  estates  for 
a  term  of  years  shall  not  be  subject  to  any  tax,"  exempts  only 
life  estates  with  remainder  to  collaterals,  strangers  in  blood,  or 
to  a  body  politic  or  corporate  from  the  tax  imposed  by  section  1, 
and  not  all  life  estates,  since  the  word  "or"  in  section  2  means 
"and"  or  "with."  And  it  is  also  held  the  term  "intestate 
laws"  used  in  Inheritance  Tax  Law,  as  used  in  section  1  pro- 
viding for  such  tax  on  all  property  which  shall  pass  "by  will 
or  by  the  intestate  laws  of  this  state,"  means  those  laws  of  the 

37— Walker  v.  People,  192  111.  39— Ayers  v.  Chicago  Title  and 
110.  Trust  Co.,  187  111.  42. 

38—187  III.  42.  40— Billings  v.  The  People,  189 

111.   472. 


298  THE  LAW  OF  ESTATES. 

state  Avhieli  govern  the  devolution  of  estates  of  persons  dying 
intestate,  and  includes  all  applicable  rules  of  the  common  law 
in  force  in  this  state. ^^  In  Connell  v.  Crosby, '^^  it  is  said: 
Section  2  of  the  Inheritance  Tax  act,  exempting  from  the  tax 
a  life  estate  devised  or  bequeathed  to  the  wife,  has  no  applica- 
tion where  the  wife  renounces  the  will  and  elects  to  take  other 
interests  in  the  testator's  property  than  the  life  estate  devised 
or  bequeathed  to  her.  In  People  v.  McCormick,'^^  the  term  "ex- 
pectation," used  in  section  1  of  the  Inheritance  Tax  act,  where 
a  person  shall  become  beneficially  entitled,  in  possession  or  ex- 
pectation, to  any  property  or  income  thereof,  means  a  condition 
where  the  title  is  vested  and  indefeasible,  the  right  to  immediate 
enjoyment  being  postponed.  The  condition  under  the  act  which 
authorizes  the  imposition  of  the  tax  is  one  of  actual  ownership — 
the  possession  of  a  title  to  something  which  can  be  conveyed.  A 
contingent  estate  cannot  be  taxed  until  it  becomes  vested,  nor 
can  an  estate  which  is  vested  subject  to  defeasance  be  taxed 
until  it  becomes  indefeasible."^'*  "The  right  to  tax  is  based 
upon  the  right  to  succeed.  The  amount  of  the  tax  is  fixed  by 
the  amount  of  the  property  which,  as  the  result  of  the  right 
to  succeed,  passes  to  the  beneficiary.  The  tax  is  levied  on  the 
succession,  and  not  on  the  property  as  such.  The  rate  must  be 
determined  by  the  right  of  succession  where  the  beneficiary  is  a 
stranger,  and  the  exemption,  if  any,  must  be  determined  by  the 
identity  of  the  person  who  succeeds.  When  the  bases  of  the 
tax,  the  rate,  and  the  exemption,  if  any,  cannot  be  fixed,  the  tax 
itself  cannot  be  fixed.  No  other  course  is  left  open,  in  the 
practical  administration  of  the  statute,  than  to  postpone  the 
assessing  and  collecting  of  the  tax  upon  such  remote  and  con- 
tingent interests  as  are  incapable  of  valuation  and  as  to  wliieh 
the  rate  and  the  exemptions  cannot  be  determined. "^^     "The 

41— Billings  v.  The  People,  189  45— People    v.    McCormick,   208 

111.  472.  III.   437;    Billings   v.   The   People. 

42—210  111.  380.  189     111.     472;     In    re     Hoffman's 

43—208  111.  437.  Estate,  143  N.  Y.  327;  In  re  Roose- 

44— Ayers  v.  Chicago  Title  and  velt's  Estate,  143  N.  Y.  120;  In  re 

Trust  Co..  187  111.  42.  Stewart's  Estate,   131   N.   Y.   274; 


INHERITANCE  TAX  LAW  OF   ILLINOIS.  299 

state  will  get  its  tax  when  the  legatees  get  their  property.  "^^ 
If  the  actual  intention  of  the  parties  to  a  deed  is  that  the  pos- 
session and  enjoyment  of  the  lands  are  postponed  until  the 
grantor's  death,  the  Inheritance  Tax  act  is  applicable,  notwith- 
standing such  intention  is  not  evidenced  in  writing.  Where 
deed  to  lands  are  executed  simultaneously  with  a  partnership 
agreement  between  the  grantor  and  the  grantees,  his  sons,  and 
the  income  from  the  lands  is  thereafter  carried  into  the  partner- 
ship account,  one-half  going  to  the  grantor  and  the  remainder 
to  the  grantees,  the  one-half  of  the  land  as  to  which  possession 
is  thereby  postponed  is  subject  to  the  Inheritance  Tax  act.^''' 
An  interest  transferred  by  deed,  grant,  sale  or  gift  is  taxable, 
under  section  1  of  the  Inheritance  Tax  act  if  made  in  expecta- 
tion of  death  or  having  death  in  view,  whether  there  was  a 
fraudulent  intent  thereby  to  evade  the  law  or  not.'*^  Gifts 
causa  mortis  would  be  within  the  statute.^^ 

In  Merrifield  v.  People,^^  the  subject  matter  of  the  trans- 
fer was  both  real  and  personal  property,  and  the  transfers 
were  absolute,  and  not  upon  the  condition  that  they  should  be 
revocable  in  case  of  the  recovery  of  the  donor.  They  were,  how- 
ever, made  in  contemplation  of  his  death.  They  fell,  therefore, 
within  the  description  of  gifts  ititer  vivos,  made  in  contempla- 
tion of  death,  rather  than  within  the  designation  gifts  causa 
mortis.  Under  this  statement  of  the  facts  it  was  held :  "As  pro- 
vided by  section  1  of  the  Inheritance  Tax  act,  all  property,  real, 
personal  and  mixed,  or  any  interest  therein  or  income  therefrom, 
which  shall  be  transferred  by  'deed,  grant,  sale  or  gift,  made 
in  contemplation  of  the  death  of  the  grantor  or  bargainor,  or 
intended  to  take  effect  in  possession  or  enjoyment  after  the 

7n  re  Curtis  Estate,  142  N.  Y.  219 ;  207    HI.    180;    Reish   v.    Common- 

In  re  Seaman's  Estate,  147  N.  Y.  wealth,  IOC  Pa.  St.  521;  Appeal  of 

C9;  In  re  Dow's  Estate,  167  N.  Y.  Seibert,  110  Pa.  St.  329. 

233;  In  re  Sloan's  Estate,  154  N.  48— Rosenthal    v.     The     People, 

Y.  109.  211  111.  306. 

46—143  N.  Y.  327.  49— Telford    v.    Patton,    144    111. 

47— People    v.    Estate    of    Moir,  611. 

50—212  111.  400. 


300  THE  LAW  OF  ESTATES, 

death  of  the  grantor  or  bargainor  or  shall  be  subject  to  a  tax," 
etc.     The  property  in  question  shown  by  the  record  was  con- 
veyed without  consideration,   and  for  the  purpose  of  placing 
the  title  in  the  grantees  prior  to  the  death  of  the  decedent. 
It  being  said:     "It  is  therefore  clear  the  transfers  were  gifts, 
made  in  conteraplation  of  death.     The  statute  provides  in  case 
of  gifts,  an  inheritance  tax  shall  be  collected  if   (1)   the  gift 
Avas  made  in  contemplation  of  the  death  of  the  donor,  or  (2) 
was  intended  to  take  effect  in  possession  or  enjoyment  after 
the  death  of  the  donor.     It  will  be  observed,  however,  the  stat- 
ute does  not  provide  the  donee  of  property  shall  be  liable  for  an 
inheritance  tax,  but  only  provides  he  shall  be  liable  for  an  inher- 
itance tax  when  the  transfer  is  made  in  contemplation  of  the 
death  of  the  donor." 

379.  Exemptions.  Lands  situate  in  states  other  than  Illinois, 
and  belonging  to  one  who  was  a  resident  of  Illinois  at  the  time 
of  his  death,  are  not  subject  to  our  Inheritance  Tax  law.^i 
In  the  case  of  Connell  v.  Crosby,^"  the  will  in  question  directed 
the  conversion  of  the  real  estate  into  money  for  the  purpose 
of  creating  a  fund  to  be  devoted  to  the  establishment  of  the 
"William  and  Vashti  College,"  and  it  was  argued,  page  390, 
that  under  the  doctrine  of  equity  the  land  is  to  be  regarded 
as  converted  into  personalty,  and  therefore  urged,  that  the 
bequest  of  the  proceeds  of  the  sale  of  the  real  estate  is  subject 
to  the  inheritance  tax,  as  being  personalty.  Held:  "The  doc- 
trine of  equitable  conversion  is  recognized  in  equity  only,  and 
is  not  given  effect  in  courts  of  law."  It  cannot  be  applied  in 
proceedings  for  the  collection  of  inheritance  or  succession 
taxes. '  '^3  Life  estates  or  for  a  term  of  years,  which  are  specifi- 
cally enumerated  in  section  (2)  ante  347,  of  the  Inheritance 
Tax  law,  are  the  only  estates  not  subject  to  tax;  and  this 
exemption  is  dependent  upon  the  further  requirement  that  the 

51— Connell   v.    Crosby,    210    111.  52—210    111.    380-390;    7    Am.    & 

380-388-390;  Wunderle  v.  Wunderle,  Eng.  Ency.  of  Law,  2d  ed.,  465. 

144   111.   40;    Smith  v.    Smith,   174  53— /n  re  Swift's  Estate,  32  N. 

111.  52;  Button  v.  Board  of  Review,  E.  Rep.  1096. 
188  111.  386. 


INHERITANCE  TAX  LAW  OF   ILLINOIS.  301 

I 
remainder  shall  be  to  the  collateral  heirs  of  the  decedent,  or  to  a 
stranger  in  blood  or  to  a  body  politic  or  corporate.^^  And 
under  section  2l^  of  the  Inheritance  Act,  ante  348,  exempt- 
ing from  the  inheritance  tax,  gifts  to  any  hospital,  religious 
or  charitable  society,  the  statute  is  not  self-executing,  since  such 
section  provides,  that  such  exemption  shall  not  extend  to  any 
corporation  or  association,  which  has  the  right  to  make  divi- 
dends or  distribute  profits  among  its  members;  therefore,  the 
county  clerk  must  determine  the  character  of  the  beneficiary.^^ 
The  amendatory  act  of  1901  (section  2i/o,  Inheritance  Tax  act, 
ante  348)  was  adopted  for  the  purpose  of  relieving  certain  be- 
quests, devises  or  gifts  from  the  operation  of  the  original  act  of 
1895,  The  act  does  not  apply  to  foreign  corporations,  but  only 
to  corporations  created  under  the  authority  of  the  state  which 
has  over  such,  the  power  of  visitation  and  control;  unless,  the 
intent,  that  the  act  shall  apply  to  other  than  domestic  corpora- 
tions is  plainly  expressed  in  the  terms  of  the  act.^"^  It  is  further 
said.  In  re  Estate  of  Speed,  page  29 :  It  has  frequently 
been  declared  to  be  a  well  established  principle  of  con- 
stitutional law,  that  a  corporation  is  not  a  ' '  citizen, ' '  within  the 
meaning  of  the  first  clause  of  section  2  of  article  4  of  the  con- 
stitution of  the  United  States,  which  declares  the  citizens  of 
such  state  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  of  the  several  states.^ '^  Foreign  corporations  are  not 
'within  the  jurisdiction'  of  a  state  other  than  that  which  created 
them,  within  the  meaning  of  those  words  as  employed  in  section 
one  of  the  fourteenth  amendment,  until  they  have  fulfilled  the 
conditions    authorizing    their    admission  into  such  state.^^     ^ 

54 — Ayers  v.   Chicago  Title  and  phrey  v.  State,  70  N.  E.  Rep.  957. 

Trust  Co.,  187  III.  42.  57— /»  re  Estate  of  Speed,  216 

55 — Provident       Hospital       and  III.    23-29;    Ducat   v.   City   of   Chi- 

Training  School  v.  The  People,  198  cago,   48   111.   172 ;    Same  v.   Same, 

111.   495.  10    Wall.    (U.    S.)    410;    Tatem   v. 

56 — In  re  Estate  of   Speed,   216  Wright,   23   N.  J.  L.   429;    Pembia 

111.  23;  Dos  Passos  on  Inheritance  Consl'd  Silver  Mining  Co.  v.  Penn- 

Tax   Law    (2d    ed.),    section    36;  sylvania,  125  U.  S.  181. 

People      V.      Western      Seaman's  58 — Blake  v.  McClurg,  172  U.  S. 

Friend  Society,  87  111.  246;  Bailie's  239;    In  re  Estate   of   Speed,   216 

Estate,  39  N.  E.  Rep.  1007;   Hum-  III.  23-30. 


302  •         THE  LAW  OF  ESTATES. 

foreign  corporation  is  not,  as  to  any  other  state,  than  that  where 
it  was  created,  a  'person  within  its  jurisdiction,'  within  the 
meaning  of  the  fourteenth  amendment,  until  it  has  complied 
with  the  laws  of  such  state  authorizing  it  to  do  business  there. 
The  act  of  1901,  exempting  from  inheritance  tax,  property  de- 
vised to  the  use  of  religious,  educational  or  charitable  corpora- 
tions, does  not  violate  the  constitutional  rule  of  uniformity  of 
taxation  by  reason  of  its  failure  to  extend  the  immunity  to 
foreign  corporations.^^  In  the  case  of  People  v.  Kelley,^^  the 
important  fact  shown  by  the  record  in  that  case,  being,  that  a 
trust  deed  was  made  by  decedent  as  a  provision  for  the  grantor 's 
two  sons.  The  deed  was  held  from  record  by  mutual  agree- 
ment between  the  parties,  but  was  fully  delivered  to  the  trustee 
and  possession  of  the  premises  turned  over  to  the  trustee  at  the 
time  of  the  delivery  of  the  deed  in  trust.  The  court  held,  page 
515 :  ' '  We  have  examined  this  record  with  care,  and  have  been 
unable  to  discover  any  evidence  which  tends  even  remotely  to 
show  that  David  Kelley  thought  he  was  about  to  die  at  the  time 
he  executed  said  trust  deed,  or  that  he  made  said  trust  deed  in 
contemplation  of  his  death.  It  is  not  the  object  of  the  statute 
to  prevent  a  parent  from  giving  the  whole  or  any  portion  of 
his  property  to  his  children  during  his  lifetime,  if  he  so  desires. 
The  only  effect  of  the  statute  as  a  revenue  measure  is  to  sub- 
ject property  to  an  inheritance  tax  if  the  gift  is  made  in  con- 
templation of  the  death  of  the  donor."  Attention  is  called  in 
this  opinion  and  distinction  is  made  between  the  case  at  bar  and 
that  of  Bosenthal  v.  People  and  Merrifield  v.  People.^^  "Where 
the  evidence  clearly  shows  both  Rosenthal  and  Merrifield  were 
about  to  die  at  the  time  they  made  transfers  of  the  bulk  of 
their  estates,  in  contemplation  of  death,  which  they  knew  was 
likely  to  follow   almost  immediately.      The   case   of  People   v. 

59 — Blake  v.  McClurg,  172  U.  S.  distinction  is  made  between  these 
239;  In  re  Estate  of  Speed,  216  111.  cases  and  that  of  People  v.  Kelley, 
23-30.  218  111.  515.     The  latter  case  it  is 

60—218  111.  509-515.  said  by  the  court  applies  the  doc- 

61—211  111.  306;   212  111.  400;  a     trine  laid  down  in  the  case  of  Peo- 
ple V.  Moir,  207  111.  180. 


INHERITANCE  TAX  LAW  OF  ILLINOIS.  303 

Kelley,  supra,  applies  the  doctrine  laid  down  in  People  v.  Moir, 
to  the  effect :  That  where  a  trust  deed,  not  made  in  contempla- 
tion of  death,  takes  effect  on  delivery,  for  the  sole  benefit  of  the 
cestuis  que  trust  (the  three  sons  of  Moir),  the  county  court 
and  judge  thereof  under  the  powers  conferred  by  the  Inheri- 
tance Tax  act,  may  separate  the  portion  to  take  effect  in  presenti 
and  in  futuro,  and  apply  the  inheritance  tax  to  so  much  of  the 
estate  as  was  necessary  to  create  an  annual  income  subjected  to 
such  tax.^2 

62— People  v.  Moir.  207  111.  180.  110  Pa.  St.  329,  24  Am.  and  Eng. 
See  also  Reish  v.  Commonwealth,  Ency.  of  Law,  p.  464,  which  gives 
106  Pa.  St.  521;  Appeal  of  Seibert,    the  doctrine  applied  in  the  case  of 

People  V.  Moir. 


CHAPTER   XVI 


LAND  TITLES-" TORRENS  LAW" 


Sec. 

380.  Land  titles  "Torrens  law." 

381.  The  applicant  must  prove  ti- 

tle as  against  all  the  world. 

382.  The  relation  of  the  examiner 

under  the  act,  that  of  mas- 
ter. 

383.  The  act  extends  to  executors, 


Sec. 

administrators  and  trustees, 
unless  excused  by  probate 
court. 

384.  Application  to  be  referred  to 

examiners,  proceedings  of. 

385.  Submission  of  question  as  to 

adoption  of  act. 


Sec.  380.  Land  titles — "Torrens  Law."  In  1897,  the  legis- 
lature of  Illinois  passed  an  act,  which  went  into  force  May  1, 
1897,  entitled  "An  Act  Concerning  Land  Titles,"  commonly 
known  as  the  "Torrens  Law."  The  act  comprises  62  sections, 
1  to  61a,  chapter  30,  entitled  "  Conveyances.  "^  The  first  case 
under  this  act  was  in  the  nature  of  quo  warranto  proceedings, 
intended  to  test  its  constitutionality.-  The  supreme  court  by  a 
very  elaborate  and  learned  opinion  passes  upon  the  many  points 
raised  against  the  act,  upholding  the  constitutionality  of  the 
same,  with  the  exception  of  those  sections  in  the  act,  which  relate 
to  descent  of  lands  on  the  death  of  a  registered  owner;  and  also 
to  those  sections  of  the  act  relating  to  the  sale  and  mortgage  of 
real  estate  belonging  to  minors  and  others  under  disability.  The 
court  holding  those  sections  involve  a  construction  that  may  only 
be  satisfactorily  determined  when  cases  shall  arise  involving 
their  validity,  and  which  would  not  go  to  the  validity  of  the 
whole  law.  On  pages  176,  177,  the  opinion  states:  "The  true 
theory  of  this  act,  as  we  understand  it,  is,  that  all  holders  of 

1— Starr     &    Curtis    Annotated  Kurd's  R.  S.  of  111.  1905,  pp.  472 

Statutes  of  Illinois,  with  Jones  &  to    490,    inclusive.      Sections    1    to 

Addington's    Supplements   thereto,  61a,    Chapter    30,    entitled    "Con- 

Vol.   4,  pp.  259  to  282,  inclusive;  veyances." 
Vol.  5,  pp.  120  to  122,  inclusive;         2— People  v.  Simon,  176  111.  165. 

304 


LAND    TITLES— "TORRENS   LAW."  305 

vested  tights  shall  be  subjected  to  an  adjudication  in  a  court  of 
competent  jurisdiction,  upon  due  notice,  in  order  that  the  true 
state  of  the  title  may  be  ascertained  and  declared,  and  that 
thereafter,  the  tenure  of  the  owner,  the  right  of  transfer  and 
incumbrance,  and  all  rights  subsequently  accruing,  shall  be  de- 
termined in  accordance  with  the  rules  now  prescribed.  A  state 
may,  by  statute,  prescribe  the  remedies  to  be  pursued  in  her 
courts,  and  may  regulate  the  disposition  of  the  property  of  her 
citizens  by  descent,  devise  or  alienation.^  The  right  of  owner- 
ship which  an  individual  may  acquire  must  therefore,  in  theory 
at  least,  be  held  to  be  derived  from  the  state,  and  the  state  has 
the  right  and  power  to  stipulate  the  conditions  and  terms  upon 
which  the  land  may  be  held  by  individuals."^  "The  power  of 
the  state  to  regulate  the  tenure  of  real  property  within  her 
limits,  and  the  modes  of  its  acquisition  and  transfer,  and  the 
rules  of  its  descent,  and  the  extent  to  which  a  testamentary 
disposition  of  it  may  be  exercised  by  its  owners,  is  undoubted. '  '^ 
"The  power  of  the  legislature  in  this  respect  (as  to  changing 
the  rules  of  evidence  as  to  the  burden  of  proof),  whether  affect- 
ing proof  of  existing  rights  or  as  applicable  to  rights  subse- 
quently acquired  or  to  future  litigation,  so  long  as  the  rules  of 
evidence  sought  to  be  established  are  impartial  and  uniform  in 
their  application,  is  practically  unrestricted."^ 

381.    The  applicant  must  prove  title  as  against  all  the  world. 

The  applicant  proceeds  under  the  act  as  in  chancery,  and  the 
rules  of  such  courts  are  always  applicable.'''^  The  applicant  for 
registration  must  establish,  that  the  true  title  in  fee  is  in  him 
before  he  can  have  relief  or  require  those  whom  he  has  brought 
before  the  court  as  defendants  to  bring  their  titles  for  adjudica- 
tion.   If  the  applicant  does  not  prove  such  title  as  is  entitled  to 

3—3    Washburn    on   Real    Prop-  5— Arndt   v.    Griggs,    134    U.    S. 

erty,  4th  ed..  p.  187,  and  authori-  316-321   and   authorities  cited, 

ties  cited  in  notes.  6— Gage  v.  Caraher,  125  111.  447- 

4 — Tiedman    on    Real    Property,  455. 

2nd  ed.,  sec.  19,  and  case  cited.  7— Gage  v.   Consumers'  Electric 

Light  Co.,  194  111.  34; 
20 


306  THE  LAW  OF  ESTATES. 

be  registered  as  a  title  in  fee  he  cannot  have  relief,  either  in  the 
way  of  registration  of  his  own  title  or  a  declaration  finding  that 
the  adverse  claimants  have  no  title,  or  that  the  claims  of  the 
adverse  claimants  are  clouds  on  such  prima  facie  title  as  the 
applicant  may  be  able  to  show  in  bills  to  remove  clouds  from 
title.^  It  was  not  the  design  of  the  act  that  a  mere  prima  facie 
title  should  be  registered  as  an  absolute  title  in  fee  simple.  The 
applicant  for  initial  registration  of  title  in  fee  simple  asserts 
that  he  is  the  owner  of  such  title  as  against  all  the  world  and 
undertakes  to  establish  it.'^  But  in  the  case  of  Glos  v.  Mickow^^ 
proof  of  possession  of  land  under  claim  and  color  of  title  made 
in  good  faith,  coupled  "with  payment  of  taxes  upon  the  property 
for  a  period  of  seven  successive  years,  held,  sufficient  in  the 
absence  of  any  other  evidence  to  authorize  registration  of  title. 
Failure  to  make  the  husband  and  heirs  of  a  deceased  sister  of 
the  applicant  parties  to  an  application  to  register  title,  does 
not  defeat  the  right  to  registration;  where  the  interest  of  the 
deceased  sister  was  barred  before  her  death  by  the  20  year  stat- 
ute of  limitations.  A  defendant  to  an  application  for  registra- 
tion of  title  cannot  complain  that  the  decree  was  entered  without 
sufficient  service  by  publication  as  to  certain  persons  made  de- 
fendants, when  the  latter  were  defaulted  and  do  not  complain 
of  the  decree.i^  But  a  party  relying  upon  adverse  title  to  defeat 
initial  title  applied  for  must  establish  it.  And  under  certain 
circumstances  the  applicant  must  show  title  from  the  govern- 
ment.^ - 

382.  The  relation  of  the  examiner  under  the  act,  that  of 
master  to  the  court.  The  relation  of  the  examiner  to  the  court 
as  created  by  the  act,  is  that  of  a  master  in  chancery  as  in  other 

8 — Glos  V.  Kingman  &  Co.,  207  of    Chicago   v.    Middlebrooke,    143 

111.  26.  111.  265. 

9— Glos  V.   Cessna,   207   111.   69;  11— McLaughlin    v.    Covel,    222 

Glos  V.  Kingman  &  Co.,  207  111.  26;  III.  162. 

Glos  V.  Holberg,  220  111.  167.  12— Glos  v.  Halberg,  220  111.  167. 

10 — 211  111.   117;    see  also,  City  13 — Gage  v.  Consumers'  Electric 

Light  Co.,  194  111.  34. 


LAND    TITLES— "TORRENS'  LAW."  307 

proceedings,  and  if  no  objections  are  made  to  the  sufficiency  of 
the  applicant's  evidence  by  exceptions  to  the  examiner's  report, 
such  objection  is  waived.^^  An  objection  to  the  report  of  an 
examiner  of  titles  is  in  the  nature  of  a  special  demurrer,  and 
such  must  point  out  the  grounds  of  the  objection  with  clearness 
and  certainty.^^  The  rule  in  chancery  proceedings,  such  as  the 
court  has  declared  the  application  for  initial  registration  of  title 
to  be,  applies  alike  to  examiners  of  title  and  masters  of  court. 
The  rule  in  equity  requires  the  party  who  may  desire  to  have 
the  court  revise  the  rulings  of  the  master  as  to  the  admission  or 
rejection  of  evidence,  to  file  objections  to  the  master's  report 
before  it  is  returned  into  court;  pointing  out  the  grounds  with 
reasonable  certainty;  then,  if  the  master  still  adheres  to  his 
ruling  and  report,  and  returns  it  into  court,  the  party  object- 
ing may  then  file  his  exceptions  to  the  report,  corresponding 
with  the  objections  made  before  the  master,  upon  the  hearing 
of  which  the  whole,  or  such  part  of  the  evidence  as  may  be 
material,  will  be  brought  forward  and  be  subject  to  review  by 
the  court.15  On  the  hearing  before  the  examiner,  under  this 
act,  the  introduction  in  evidence  of  an  abstract  of  title  show- 
ing the  records  of  conveyances,  which  were  indispensable  links 
in  petitioner's  chain  of  title,  without  requiring  any  preliminary 
proof  which  might  render  the  abstract  admissible  as  secondary 
evidence  was  error.  In  such  ease  proof  should  be  made  that 
the  original  deeds  had  been  lost  or  destroyed  by  fire  or  other- 
wise, and  that  the  abstract  of  title  had  been  made  in  the  ordinary 
course  of  business,  so  that  proof  so  made  be  brought  within  sec- 
tions (1)  23  or  24  of  chapter  116,  entitled  "Records  Destroyed" 
or  within  the  provisions  of  (2)  section  36,  chapter  30,  entitled 
"Conveyances."^'^ 

14— Glos  V.  Hoban,  212  111.  222.  Vol.   3,  pp.  335S,   3359;    Vol.   4,   p. 

15 — Hurd    V.    Goodrich,    59    111.  1073,   and   cases   cited   under   sec- 

450;  Glos  v.  Hallowell,  190  111.  65.  tions   23   and   24,  chapter   116,   en- 

16 — Glos  V.  Hallowell,  190  111.65;  titled  "Records  Destroyed";  Kurd's 

(1)     Starr    &    Curtis     Annotated  R.   S.   of  111.,   1905,  same  sections 

Statutes  of  Illinois,  with  Jones  &  and  chapter,  p.  1626.   (2)   Starr  & 

Addington's   Supplements  thereto,  Curtis  Annotated  Statutes  of  Illi- 


308  THE  LAW  OP  ESTATES. 

As  it  has  been  held,  that  sections  7  and  18  of  the  Torrens  Land 
Title  Law,  has  never  been  legally  adopted  in  Cook  County,  it  is 
essential  to  make  preliminary  proof  in  proceedings  to  register 
title,  under  the  provisions  of  section  24  of  the  Records  Act.^'^ 

383.  Application  for  registration  of  lands — executors,  admin- 
istrators and  trustees  required  to  make  application  unless  ex- 
cused by  the  Probate  Court  in  case  of  hardship.     An  act  to 

amend  sections  seven  (7)  and  eighteen  (18)  of  an  act  entitled, 
*'An  act  concerning  land  title,"  approved  and  in  force  May  1, 
1897,  approved  May  18,  1903.  In  force  July  1,  1903,  as  follows : 
"Sec.  7.  The  owner  of  any  estate  or  interest  in  land,  whether 
legal  or  equitable,  may  apply,  as  hereinafter  mentioned,  to  have 
his  title  regist-ered.  He  may  apply  in  person  or  by  an  attorney 
in  fact  authorized  so  to  do;  a  corporation  may  apply  by  its 
authorized  agent;  an  infant  by  his  natural  or  legal  guardian; 
any  other  person,  under  disability,  by  his  legal  guardian.  Ex- 
cept in  applications  by  executors  and  administrators  the  person 
in  whose  behalf  the  application  is  made  shall  be  named  as  ap- 
plicant. It  shall  be  the  duty  of  all  executors  and  administrators, 
appointed  after  the  adoption  of  this  act  and  trustees  holding 
^itle  or  power  of  sale  under  wills  admitted  to  probate  after  that 
date  to  apply  within  six  months  after  their  appointment,  to 
have  registered  the  titles  to  all  non-registered  estates  and  inter- 


nois,    with    Jones    &    Addington's  Starr  &  Curtis  Annotated  Statutes 

Supplements   thereto,    Vol.    1,    pp.  of  Illinois,  with  Jones  &  Adding- 

955,  956;  Vol.  4,  p.  258;  Vol.  5,  p.  ton's  Supplements  thereto.  Vol.  3, 

119,  and  cases  cited  under  section  p.  3361;  Vol.  4,  p.  1073,  and  cases 

36,   chapter   30.   entitled   "Convey-  cited    under    sections    of    statute; 

ances";   Kurd's  R.  S.  of  111.,  1905,  Kurd's  R.  S.  of  111.  1905,  pp.  473, 

same  section  and  chapter,  p.  470;  see  also.  Messenger  v.  Messenger, 

see  also,   Glos  v.   Cessna,   207   111.  223  111.  282;  sections  7  and  18  Tor- 

69;    Glos  V.  Talcott,  213  111.  81.  reus  Land  Title  Act,  Chapter  30. 

17 — Post  384;  sec.  7,  18,  Chapter  "Conveyances."      Starr    &    Curtis 

30,  entitled  "Conveyance,"  an  act  Statutes  etc.,  Vol.  4,  pp.  260,  263; 

concerning    land     titles;     sec.    24,  Kurd's  R.  S.  of  111.  1905,  pp.  473, 

chapter  116,  "Records  Destroyed";  475;    Karvey  v.   County   of   Cook, 

221  111.  76. 


LAND    TITLES— "TORRENS   LAW."  309 

ests  in  land  (situated  in  any  county  in  which  this  act  at  the  time 
is  in  force),  which  the  several  decedents  they  represent  might 
have  registered  in  their  lifetime  in  their  own  right.  Such  appli- 
cation shall  set  forth  the  names  and  addresses  of  the  persons 
entitled  to  the  estate  or  interest  sought  to  be  registered,  and  any 
such  person  not  joining  in  the  application  shall  be  made  a  de- 
fendant. The  court,  in  its  final  decree,  in  addition  to  what  is 
provided  in  the  subsequent  sections  of  this  act,  shall  determine 
the  several  titles  and  interests  of  the  persons  claiming  under 
the  decedent,  and  declare  the  same,  and  decree  in  whom  regis- 
tration shall  be  made.  Land  so  registered  shall  be  subject  to 
be  sold  for  the  debts  of  the  estate  of  the  decedent,  as  now  pro- 
vided by  law.  Provided  that  the  court  of  probate  jurisdiction, 
of  the  county  in  which  the  land  is  situated,  in  cases  where  regis- 
tration may  appear  to  be  a  hardship,  may,  by  an  order  entered 
of  record,  excuse  such  application  for  registration  as  to  the 
whole  or  any  part  of  the  land. 

384,  Application  to  be  referred  to  examiner — proceedings  of. 

Sec.  18.  Immediately  upon  the  filing  of  the  application,  an 
order  may  be  entered  referring  the  same  to  one  of  the  examiners 
of  title  appointed  by  the  registrar,  who  shall  proceed  to  examine 
into  the  title  and  into  the  truth  of  the  matter  set  forth  in  the  ap- 
plication, and  particularly  whether  the  land  is  occupied,  the 
nature  of  the  occupation,  if  occupied,  and  by  what  right,  and 
make  report  in  writing  to  the  court,  the  substance  of  the  proof 
and  his  conclusions  therefrom.  He  shall  have  power  to  admin- 
ister oaths  and  examine  witnesses,  and  may  at  any  time  apply 
to  the  court  for  directions  in  any  matter  concerning  his  inves- 
tigation. The  examiner  may  receive  in  evidence  any  abstract 
of  title  or  certified  copy  thereof,  made  in  the  ordinary  course 
of  business  by  makers  of  abstracts ;  but  the  same  shall  not  be 
held  as  more  than  prima  facie  evidence  of  title,  and  any  part  or 
parts  thereof  may  be  controverted  by  other  competent  proof;<. 
He  shall  not  be  required  to  report  to  the  court  the  evidence 
submitted  to  him  except  upon  the  request  of  some  party  to  the 
proceeding,  or  by  the  direction  of  the  court.    No  report  shall 


310  THE  LAW  OF  ESTATES. 

be  made  upon  such  application  until  after  the  expiration  of  the 
time  specified  in  the  notice  hereinafter  provided  for  the  appear- 
ance of  the  defendants,  and  in  ease  of  such  appearance,  until 
opportunity  is  given  to  such  defendant  to  contest  the  rights  of 
the  applicant  in  such  manner  as  shall  be  allowed  by  the  court.^^ 
385.  Submission  of  question  as  to  adoption  of  act.  Section 
2.  The  provisions  of  this  act  shall  not  apply  to  land  in  any 
county,  where  the  act  of  which  this  act  is  an  amendment  has 
been  adopted,  until  this  act  shall  have  been  adopted  by  a  vote 
of  the  people  of  the  county  at  an  election  to  be  held  on  the  Tues- 
day next  after  the  first  ]\Ionday  in  November,  or  any  election 
for  the  election  of  judges  of  the  year  in  which  the  question  is 
submitted.  The  question  may  be  submitted  in  the  following 
manner:-  In  any  county  of  the  first  or  second  class,  as  the  same 
are  classified  in  the  act  concerning-  fees  and  salaries,  on  the 
petition  of  not  less  than  one-half  of  the  legal  voters,  to  be  ascer- 
tained by  the  vote  cast  at  the  last  preceding  election  for  county 
officers,  or  in  any  county  of  the  third  class  upon  petition  of  not 
less  than  twenty-five  hundred  (2,500)  legal  voters  praying  the 
submission  of  the  question  of  the  adoption  of  this  act,  the  clerk 
shall  give  notice  that  such  question  will  be  submitted  at  such 
election  and  shall  cause  to  be  printed  at  the  top  of  the  ballots 
to  be  used  for  said  election : 


I      For  extension  of  the  Torrens  land  title  system 


Against  extension  of  the  Torrens  land  title  svstem 


The  votes  cast  upon  that  question  shall  be  counted,  canvassed 
and  returned  as  in  the  case  of  the  election  of  county  officers. 
If  the  majority  of  the  votes  cast  on  that  subject  shall  be  for 
extension  of  the  Torrens  land  title  system,  this  act  shall  there- 
after be  in  force  and  appty  to  lands  in  that  county.  If  the  ma- 
jority of  the  first  submission  is  not  in  favor  of  such  extension, 
the  question  shall  not  be  again  submitted  before  the  second  year 
thereafter. 

18— See  Ante  382. 


LAND    TITLES— "TORRENS    LAW."  311 

Note. — Since  the  passage  of  this  amended  act,  and  at  the 
spring  election  of  1904,  the  Torrens  system  was  submitted  for 
vote  of  the  people  of  Cook  County,  Illinois.  The  vote  was 
largely  for  the  extension  of  the  Torrens  system,  but  for  defects 
in  the  submission,  the  vote  of  the  people  at  such  election,  failed 
legally  to  express  the  intention  of  the  law.  No  steps  up  to  this 
time  have  therefore  been  taken  by  the  court  of  probate  to  put 
the  act  in  operation  in  any  estate  pending  in  that  court.^^ 

19— Harvey  v.   County  of  Cook,  221  111.  76. 


CHAPTER   XVII 


ADMINISTRATION 


Sec. 

386.  Necessity  of  administration. 

387.  Different    administrators    de- 

fined. 

388.  Domiciliary   and   ancillary  ad- 

ministrators. 

389.  Administrator  pro   tern. 


Sec. 

390.  Administrator    de    bonis    non 

or  with  will  annexed. 

391.  Administrators  to   collect. 

392.  Administrators  de  son  tort. 

393.  Public    administrators. 


Sec.  386,  Necessity  of  administration.  It  is  undoubtedly  the 
best  and  safest  practice,  that  estates  of  deceased  persons  be 
settled  by  proper  administration.  This  is  not  always  done,  for 
the  law  does  not  make  it  indispensable  that  every  estate  shall 
be  administered,  merely  for  the  sake  of  administration.  In 
some  instances  the  distributees  have  made  settlements  of  estates 
between  themselves,  and  such  settlements  have  been  sanctioned 
and  ratified  by  the  courts.  Where  a  wife  died  without  children 
or  descendants,  leaving  her  surviving  a  husband,  who  took  pos- 
session of  a  part  of  his  deceased  wife's  property  and  allowed  his 
wife's  mother  to  have  the  remainder  of  it,  there  being  no  debts 
of  any  kind  to  be  paid.  It  was  held,  that  in  such  case  administra- 
tion would  not  be  granted  to  the  husband  solely  to  enforce  his  bare 
legal  title  to  that  part  of  his  wife's  estate  which  her  mother  had 
taken;  she  being  in  equity  entitled  to  it  by  virtue  of  a  settle- 
ment made  between  herself  and  said  surviving  husband.^  Where 
the  husband,  the  sole  heir  of  his  deceased  wife  as  to  her  per- 
sonal estate,  has  paid  all  her  debts  and  liabilities,  and  as  such 
heir,  having  possession  of  all  her  personal  estate,  makes  a  vol- 


1— Abbott  V.  People,  10  111.  App. 
62;  and  see  also  in  support  of  the 
doctrine  in  this  case  the  following: 
Harrington  v.  Lawman,  47  N.  Y. 


Sup.  Ct.  868;  Elliott  v.  Lewis,  3 
Edw.  Ch.  40;  Bogert  v.  Furman, 
10  Paige  496;  Estate  of  Wagner, 
119  N.  Y.  28. 


312 


ADMINISTRATION.  313 

untary  disposition  of  promissory  notes  payable  to  his  wife,  no 
administration  is  necessary  to  collect  the  notes;  and,  if  ap- 
pointed the  administrator  will  not  be  entitled,  as  a  matter  of 
right,  to  have  the  husband's  equitable  assignee  surrender  such 
notes  to  him  merely  to  collect  them  and  charge  his  commissions 
on  the  amount  when  collected.^  No  administration  is  necessary 
to  vest  decedent's  title  in  next  of  kin,  where  the  decedent  died 
in  infancy  incapable  of  contracting  debts.^  The  Statute  of 
Illinois  providing  that  title  to  property  vests  in  the  heirs  of  an 
intestate  after  payment  of  just  debts,  does  not  dispense  with  the 
necessity  of  administration,  so  as  to  allow  the  heirs  of  such 
intestate  to  sue  directly  in  their  own  names  for  the  recovery  of 
the  assets.^ 

It  is  as  proper  to  appoint  an  administrator  for  the  collection 
of  debts,  as  for  the  sale  of  lands. ^  It  is  also  necessary  where 
a  creditor  charges  insolvency  and  fraudulent  conveyance  by  a 
deceased  in  his  bill  in  equity  asking  for  a  receiver  to  take  out 
administration;  equity  will  not  entertain  a  bill  by  such  creditor 
where  no  administration  has  been  had  on  the  estate  of  a  deceased 
person.®  So  where  the  plaintiff  died  pending  an  action  by 
him  to  recover  coal  mined  and  removed  from  his  land  by  the 
defendant  company,  who  converted  the  same  to  its  own  use, 
it  was  held:  The  widow  of  decedent,  as  his  sole  devisee  and 
legatee  under  his  will,  could  not  on  her  own  suggestion  be  sub- 

2— McKee  v.  Abbott,  105  111.  592-  4— Leamon  v.  McCubbin,  82  111. 
593;  Dixon  v.  Buell,  21  111.  203;  263;  sections  42-43,  chapter  3,  en- 
Lewis  V.  Lyons,  13  111.  117;  Dor-  titled  "Administration  of  Estates," 
man  v.  Tost,  13  111.  27;  Fitzgerald  Starr  &  Curtis  Annotated  Statutes 
V.  Clancy,  49  111.  465;  Leamon  v.  of  Illinois,  with  Jones  &  Adding- 
McCubbin,  82  111.  263;  Cross  v.  ton's  Supplements  thereto.  Vol.  1, 
Carey,  25  111.  562.  The  latter  case  pp.  286,  287,  and  case  cited  under 
holding,  if  there  are  no  debts,  the  sections  of  statute  noted;  Kurd's 
sole  heir  may  sell  personal  prop-  R.  S.  of  III.  1905,  same  sections 
erty  without  taking  out  adminis-  and  chapter,  p.  112. 
tration.  5— Walker    v.    Walker,    55    111. 

3— Lynch  v.   Rotan,    39   111.   14;  App.  118. 

Von  Giessen  v.  Bridgford,  83  N.  Y.  6— Goodman  v.  Koppert,  1G9  111. 

348.  136. 


314  THE  LAW  OF  ESTATES. 

stituted  as  a  party  plaintiff  in  such  action,  without  first  obtain- 
ing letters  of  administration  on  the  estate  of  her  deceased  hus- 
band.^ Courts  of  Probate  alone  have  power  to  appoint  adminis- 
trator.s 

387.  Different  administrators  defined.  Foreign  representa- 
tives of  deceased  persons'  estates  are  usually  termed  non-resi- 
dent executors  and  administrators.  Suits  by  such  are  subject 
to  the  same  rules  of  pleading  as  those  by  domestic  representa- 
tives. Such  may  appear  in  the  courts  of  Illinois  and  defend  the 
interests  of  their  estates.  They  may  under  section  42  of  Chapter 
3,  entitled  ''Administration  of  Estates,"  appear  in  any  court 
in  any  way  in  which  it  becomes  necessary  for  them  to  properly 
prosecute  or  enforce  any  claim  of  estates  testate  or  intestate.^ 
The  letters  of  such  may  be  proved  under  the  Act  of  Congress  as 
provided  by  the  Statute  of  Illinois.^^  Under  sections  42  and  43 
of  the  Administration  act  {ante,  336)  there  may  be  an  executor 
in  a  foreign  state  and  an  administrator  with  the  will  annexed 
in  this  State.^^  Administration  is  properly  granted  on  the 
estate  of  a  non-resident  owner  of  lands  in  the  county  of  this 
State  where  the  lands  or  some  part  thereof  are  situated.^^ 

388.  Domiciliary  and  ancillary  administrators  defined. 
Where  a  decedent  at  the  time  of  his  death  was  a  resident  of  the 
State  of  Illinois,  and  administration  was  granted  in  this  State, 

7— McLean  County  Coal  Co.  v.  Union  R.  &  T.  Co.  v.  Shacklett,  119 

Long,  91  111.  617.  111.  232;  Hickox  v.  Frank,  102  111. 

8— Leddicoat     T.     Treglorm,     6  660. 

Colo.  47.                -  11— Sec.    42   and   43,   chapter   3, 

9 — Collins  V,  Ayers,  13  111.  358;  "Administration  of  Estates,"  Starr 

Decker  v.  Patton,  20  111.  App.  210;  &  Curtis  Annotated  Statutes  of  111., 

sec.  42,  chapter  3,  "Administration  Vol.  1,  pp.  286,  287;   Kurd's  R.  S. 

of    Estates,"    Starr   &    Curtis   An-  of  111.  1905,  p.  112;  Branch  v.  Ran- 

notated  Statutes  of  Illinois,  Vol,  1,  kin,  108  111.  444. 

p.  286,  and  cases  cited  under  sec-  12 — Bowles    v.    Rouse,    3    Gilm. 

tion  of  statutes  noted;   Kurd's  R.  (111.)    409;    section  18,  chapter   3, 

S.   of   111.    1905,    p.    112.     See   also  "Administration    of    Estates,"    as 

(ante  386  of  this  work).  amended  May  12,   1905.     In  force 

10— Collins  V.  Ayers,  13  111.  358;  July  1,   1905.     Kurd's  Statutes  of 

111.,  1905,  p.  107. 


ADMINISTRATION.  315 

such  administration  will  be  considered  and  treated  as  the  prin- 
cipal administration;  and  that  granted  to  the  same  adminis- 
trator in  another  State  the  ancillary  administration.^^  When  a 
person  dies  testate  in  another  state,  it  is,  where  the  proceeding 
is  regular,  proper  to  appoint  an  administrator  in  this  state 
with  the  will  annexed  for  the  purpose  of  local  administration.^'* 

389.  Administrator  pro  tem.  An  administrator  pro  tern 
should  be  appointed  to  sue  vrhcre  the  administrator  inventories 
debts  from  himself  to  the  estate,  but  denies  his  1  lability.^  •'^  And 
see  the  following  cases  treating  the  subject  of  such  administra- 
tion when  and  how  granted.  The  time  of  holding  such  office 
and  the  rights,  duties  and  liabilities  of  such.^^ 

390.  Administrator  de  bonis  non  or  with  will  annexed. 

Where  it  appears  that  a  person,  at  the  time  of  his  death,  ovv^ned 
land  which  was  not  inventoried  or  accounted  for  by  his  admin- 
istratrix, letters  of  administration  de  bonis  non  will  be  granted 
on  the  petition  of  a  creditor  made  after  the  discharge  of  the  ad- 
ministratrix.i '^  Administrators  with  the  will  annexed  are 
usually  appointed  and  authorized  to  perform  any  act  in  the 
execution  of  the  will  and  left  unperformed  by  the  executor. 
But  it  is  very  essential  that  such  administrator,  have  the  aid 
and  assistance  of  the  court  in  the  performance  of  the  duties  un- 
finished by  the  executor  formerly  acting  under  the  powers  in 
the  will  solely  bestowed  on  him  as  such.  The  words  used  in 
section  37,  Chapter  3,  of  the  Administration  act.^^  *'If  there  is 
any  thing  remaining  to  be  performed  in  the  execution  of  the 

13— Ramsey  v.  Ramsey,  196  III.  Matter   of  Eddy,   26   Weekly   Dig. 

179.  141;    Matthews  v.   American  Cen- 

14— Walker   v.    Walker,   55   111.  tral  Ins.  Co.,  41  N.  Y.  Sup.  Ct.  304. 

App.   118.  17— Tillson  v.  Ward,  46  App.  179; 

15 — May  v.  Lighty,  26  111.  App.  Casoni  v.  Jerome,  58  N.  Y.  315. 

17.  18— Section  37,  chapter  3,  "Ad- 

16 — Saw    Mill    Co.    v.    Dock,    3  ministration  of  Estates."     Starr  & 

Dem.  Surr.  55;   Estate  of  Dock,  7  Curtis  Annotated  Statutes  of  Illi- 

Civ.  Proc.   (Browne)   237;  West  v.  nois,  Vol.  1,  p.  284,  and  cases  cited 

Maples,  14  Weekly  Dig.  92;  Weed  under  section.  Kurd's  R.  S.  of  111., 

V.  Waterbury,   5  Redf.  Surr.  114;  1905,  p.  111. 


316 


THE  LAW  OF  ESTATES. 


will,"  does  not  authorize  such  administrator  to  execute  a  power 
of  sale  in  the  will ;  these  words  mean  something  to  be  performed 
as  executor,  and  do  not  extend  to  anything  to  be  done  as  agent 
or  trustee  under  a  power  to  sell  land.^^ 


19— Nicoll  V.  Scott,  99  111,  536; 
Hall  V.  Irwin,  2  Gilm.   (111.)    176; 
see  the  following  cases,  where  acts 
have  been  performed  by  adminis- 
trators, and  have  been  sanctioned 
by  the  courts,  as  within  the  gen- 
eral powers  of  such.     Newhall  v. 
Turney,    14    111.    338,    it    is   held: 
The   powers    of   an    administrator 
de  bonis  non,  extend  only  to  the 
recovery  of  such  goods  and  chat- 
tels of  the  intestate  as  remains  un- 
administered    in    specie,    and    to 
debts  due  the  intestate  which  re- 
main  unpaid.     But   his  authority 
does  not  extend  to  assets  already 
administered.      Such    cannot    call 
upon  a  former  administrator,  nor 
upon  his  personal  representatives, 
to  account  for    any    part    of    the 
estates  sold,  converted,  or  wasted 
by  him.     But  the  creditors  or  the 
distributees  may.    Rowan  v.  Kirk- 
patrick,  14  111.  1,  holds  in  harmony 
with  former  case  cited:   But  it  is 
held  the  distributees  or  creditors 
of  the  first  intestate  should  prose- 
cute the  representatives  of  the  first 
administrator,    for    any    waste    or 
misapplication    of    assets.      DuflBn 
V.  Abbott,  48  111.  17.     In  this  case 
the  former  decisions  are  overruled 
so  far  as  in  conflict  with  this  deci- 
sion rendered  after  statute  sec.  39, 
chapt.      3,      "Administration      of 
Estates"  was  passed  in  1845,  and 
see  also  sec.  13,  chapter  103,  "Of- 
ficial Bonds,"  (1)   Kurd's  R.  S.  of 
111.,   p.    Ill;    (2)    p.   1419:    In   the 
Duffin  case,  it  was  held  under  the 


statute,  then  in  force  and  now  for 
that  matter,  an  administrator  de 
bonis  non,  has  the  authority  to 
call  upon  a  former  administrator, 
whose  letters  have  been  revoked, 
to  account  fully  for  his  adminis- 
tration of  the  estate.  In  Bostwick 
v.  Skinner,  80  111.  147,  it  is  held: 
When  a  petition  is  filed  in  the 
county  court,  for  leave  to  sell  real 
estate,  one  of  the  questions  pre- 
sented for  adjudication  by  the 
court  is,  whether  the  petitioner  is 
administrator,  and  if  the  court  de- 
crees in  accordance  with  the  prayer 
of  the  petition,  the  presumption 
is  that  the  proof  was  sufficient. 
In  Hanifan  v.  Needles  it  is  held  to 
be  a  rule  of  the  common  law  that 
the  powers  and  the  duties  of  an 
administrator  de  bonis  non  are 
limited  to  the  administration  of 
such  property  belonging  to  the 
decedent's  estate  as  has  not  al- 
ready been  administered  upon  by 
the  former  executor  or  adminis- 
trator. And  when  such  is  appoint- 
ed to  fill  a  vacancy  caused  by  the 
removal  of  an  executor  or  admin- 
istrator, he  may  maintain  any  ap- 
propriate action  or  proceeding 
against  such  removed  executor  or 
administrator,  for  any  waste,  mis- 
management or  breach  of 
duty  in  respect  to  the  estate 
during  the  administration  of 
the  latter,  but  not  so  where 
the  vacancy  was  caused  by  death. 
In  such  case,  the  heirs,  dev- 
isees or  creditors  alone  can  main- 
tain the   action.     In  the  case  of 


ADMINISTRATION. 


317 


391.  Administrators  to  collect.  In  a  contest  of  a  will,  the 
court  of  probate  may,  on  the  application  of  the  widow  stating 
that  her  award  had  not  been  set  out  to  her,  and  that  the  assets 
of  the  estate  are  in  danger  of  being  lost  pending  the  appeal  of 
such  contest,  appoint  administrator  to  collect.^o 

Administrator  to  collect  has  no  power  to  make  disburse- 
ments. ^^  And  cannot  make  investments  for  he  has  no  such 
power.-2  And  such  administrator  cannot  receive  before  ma- 
turity the  payment  of  notes.^s 

392.  Administrators  de  son  tort.  Where  one  not  the  execu- 
tor or  administrator  of  a  deceased  person,  assumes  to  act  as 
such,  or  appropriates  the  goods  or  property  of  the  deceased  to 
his  o^n  use,  he  renders  himself  liable  as  executor  or  adminis- 
trator de  son  tort.^* 


Keplinger  v.  Keplinger,  172  111. 
449,  the  rule  that  the  administra- 
tor of  a  deceased  executor  does 
not  succeed  to  the  estate  of  the 
deceased  executor  is  universally 
settled.  And  the  common  law  rule, 
that  a  sole  executor  may  transmit 
to  his  executor  the  administration 
of  the  estate  of  his  testator,  has 
no  application  in  a  case  where  the 
original  testator  designated  in  his 
will,  a  person  to  succeed  as  execu- 
tor in  case  of  the  death  of  the 
person  named  to  execute  the  will. 
See  also,  Woerner's  Am.  Law  of 
Administration,  p.  394;  2  Black- 
stone's  Com.  506;  Roanoke  Navi- 
gation Co.  V.  Green,  3  Dev.  L.  434; 
see  also  the  following  cases  in 
point  of  matter  in  text:  Neiniger 
V.  Fietsam,  29  111.  App.  648;  Huff- 
man V.  People,  78  111.  App.  355; 
Holden  v.  Piper,  5  Colo.  Ct.  of  App. 
71.  The  following  cases  hold,  in 
the  particular  proceeding  had,  and 


the  facts  governing  the  cases,  that 
it  is  improper  to  appoint  such  ad- 
ministrator, for  the  purpose 
sought:  Grafferwreid  v.  Kundert, 
34  111.  App.  483;  Matter  of  Curtis, 
37  N.  Y.  Sup.  Ct.  586. 

20— Schenck  v.  Schenck,  80  HI. 
App.  613;  sections  11  to  17,  chapt, 
3,  "Administration  of  Estates," 
Starr  &  Curtis  Annotated  Statutes 
of  Illinois,  Vol.  1,  pp.  272,  273,  274; 
Kurd's  R.  S.  of  111.,  1905,  pp.  106, 
107. 

21 — In  re  Estate  of  Wincox,  186 
111.  454. 

22— People  v.  Solomon,  184  111. 
499. 

23— 7n  re  Estate  of  Wincox,  186 
111.  454. 

24— Trutt  V.  Cummons,  6  III. 
App.  73;  Camp.  v.  Elliott.  38  111. 
App.  337;  Bradford  v.  Bennett,  48 
111.  App.  145;  Rohn  v.  Rohn.  204 
111.  184;  Same  v.  Same,  98  111.  App. 
509;  Truesdell  v.  Burke,  145  N.  Y. 
612. 


318  THE    LAW   OF   ESTATES. 

393.  Public  administrators.  Are  created  by  statute  and  ap- 
pointed by  the  Governor  of  the  State  of  Illinois.  Chapter  III 
of  this  work,  ** Public  Administrators."  When  given  the  ad- 
ministration of  an  estate  by  the  courts  of  probate,  they  are  held 
to  the  same  powers  and  duties  as  other  administrators.  Their 
appointment  is  made  where  special  conditions  and  circum- 
stances specified  by  the  statute  of  the  state  arise  when  they  seek 
the  administration  of  an  estate.^^ 

25— Sections  18,  44  to  50,  chap-  107,  112,   113;    Brand   v.   Rankin, 

ter  3,  "Administration  of  Estates,"  108  111.  444;   Heirs  of  Langworthy 

Starr  &  Curtis  Annotated  Statutes  v.  Baker,  23  HI.  484. 
of  Illinois,  with  Jones  &  Adding-        Note. — As  the  several   kinds   of 

ton's  Supplements  thereto.  Vol.  1,  administrators,   their   powers   and 

pp.  287,  288,  289;  Vol.  4,  p.  32;  Vol.  duties,     come    in    natural     order 

5,  p.  16,  and  cases  cited  under  sec-  throughout  this  work,  we  shall  in 

tions  of  statute  noted  in  each  vol-  the    order    of    procedure    consider 

ume;  Kurd's  R.  S.  of  111.  1905,  pp.  such,  with  their  legal  powers  and 

duties. 


CHAPTER   XVIII 


ADMINISTRATION-CONTINUED 


Sec. 

394.  Preliminary  remarks. 

395.  Granting  letters  testamentary 

or  of  administration. 

396.  Executor's  duty  and   custodi- 

an's duty  to  present  will. 

397.  Age   and   qualification   of  ex- 

ecutors. 

398.  Executor's  power  and  liability 

before   probate  of  will. 

399.  Death,  failure  of  part  of  ex- 

ecutors to  qualify. 


Sec. 

400.  Oath  of  executor  or  adminis- 

trator. 

401.  Bond  of  executor  or  adminis- 

trator   with    the    will    an- 
nexed. 

402.  When  security  not  required. 

403.  Removal   of  executors  or  ad- 

ministrators     to      different, 
county. 

404.  The    form    of    letters    testa- 

mentary. 


Sec.  394.  Preliminary  remarks.  The  owner  of  real,  per- 
sonal and  mixed  property,  may,  by  last  will  and  testament 
nominate  and  empower  some  person  or  corporation,  such  as  a 
trust  company,  qualified  by  law,  to  administer  his  or  her  estate 
after  death.  As  a  general  rule  whatever  the  testator  clearly  di- 
rects to  be  done  with  his  property  and  the  proceeds  thereof, 
when  not  in  conflict  with  the  well  established  rules  of  law,  will 
be  carried  out  by  the  executors  authorized  by  the  will  or  by  the 
administrator  with  the  will  annexed,  by  aid  and  assistance  of 
the  courts  of  probate,  or  other  courts  of  law  and  equity,  to 
whom  it  may  be  necessary  to  apply  for  a  full  and  complete  ad- 
ministration of  an  estate,  or  to  carry  out  the  imposed  conditions 
of  a  testator's  will.  The  duties  imposed  by  any  testator  or  tes- 
tatrix upon  those  authorized  to  act  for  them  after  death,  are 
always  subject  to  lawful  duties  imposed  by  statiTte  law  and  con- 
nected with  the  office  of  executor  or  administrator  when  ac- 
cepted. Such  officers  are  required  to  collect  all  available  assets 
of  the  estate  they  administer;  account  for  all  property  coming 
to  their  hands,  or  within  their  knowledge  belonging  to  the  estate 

319 


320  THE    LAW    OF   ESTATES. 

in  their  charge.  They  must  pay  all  debts  sanctioned  by  law  or 
allowed  by  the  court  administering  the  estate,  out  of  the  pro- 
ceeds of  such  estate,  with  the  costs  of  administration;  or,  such 
portion  of  the  proper  debts  as  the  assets  of  an  estate  will  per- 
mit. Such  officers  must  settle  their  accounts  with  the  estate,  as 
often  as  called  upon  by  times  fixed  by  statute  and  as  much  oft- 
ener  as  the  court  administering  the  estate  may  require ;  and 
such  account  or  accounts  must  be  approved  by  the  court  as  the 
statute  directs.  And  such  officere  must  perform  other  numerous 
duties  required  by  the  statute  law,  of  necessity  arising  during 
the  administration  of  an  estate.  The  duty  of  the  administrator 
is  similar  to  that  of  an  executor,  though  the  executor  has  powers 
under  the  will  which  in  many  cases  cannot  be  delegated  to  an 
administrator  even  with  the  will  annexed. 

395.     Granting  letters  testamentaiy  or  of  administration. 

Section  1  of  Chapter  3,  entitled,  "Administration  of  Estates," 
provides :  ' '  That  when  a  will  has  been  duly  proved  and  allowed, 
the  County  Court  shall  issue  letters  testamentary  thereon  to  the 
executor  named  in  such  will,  if  he  is  legally  competent  and  ac- 
cepts the  trust,  and  gives  bond  to  discharge  the  same ;  and  when 
there  is  no  executor  named  in  such  will,  or  the  executor  named 
therein  dies,  refuses  to  act,  or  is  otherwise  disqualified,  the  court 
shall  commit  the  administration  of  the  estate  unto  the  widow, 
surviving  husband,  next  of  kin,  or  creditor,  the  same  as  if  the 
testate  had  died  intestate.  In  all  cases  copies  of  the  will  shall 
go  out  with  the  letters.  "^ 

The  courts  of  probate  are  always  open  for  the  purpose  of 
granting  letters  testamentary  or  of  administration.^ 

In  vacation  the  clerk  of  the  County  Court  (or  Probate  Court), 
may  grant   letters  testamentary  or  of   administration,   subject 

1 — Starr  &  Curtis  Annotated  bate  Court  Act,  part  of  chapter 
Statutes  of  Illinois,  Vol.  1,  p.  269;  noted.  Starr  &  Curtis  Annotated 
Kurd's  R.   S.  of  111.,  1905,  p.  104.     Statutes   of   Illinois,    Vol.    1,    pp. 

2— Sections  6,  chapter  37,  1178,  1196;  Kurd's  R.  S.  of  111., 
"Courts,"  County  Court  Act,  Pro-     1905,    same    section    and    chapter, 

pp.  618.  627. 


ADMINISTRATION— CONTINUED.  321 

always  to  the  approval  or  disapproval  of  such  court  at  its  next 
regular  term.* 

"A  creditor  cannot  be  appointed  until  sixty  days  after  re- 
fusal by  widow  and  next  of  iiin  to  serve.  Other  persons  cannot 
be  appointed  until  after  fifteen  days  from  expiration  of  such 
sixty  days.^  A  judgment  creditor  holding  foreign  judgment 
against  decedent  at  his  death,  must  in  the  absence  of  other 
administration,  take  out  administration  within  time  allowed  by 
general  statute  of  limitations  for  action  on  his  claim,  or  his  claim 
will  be  totally  barred.^  A  creditor  living  in  this  state,  will  be 
preferred  to  public  administrator,  in  the  matter  of  appointing 
of  administrator  of  the  estate  of  an  intestate  who  died  without 
the  state.^  And  in  a  case  where  letters  of  administration  were 
issued  more  than  seven  years  after  intestate 's  death,  it  was  held : 
Such  should  be  issued  only  upon  proof  of  facts  preventing 
earlier  application.''^  The  grant  of  letters  by  a  clerk  is  a  minis- 
terial act,  which  may  be  reviewed  in  a  collateral  proceeding.^ 
But  the  regularity  of  the  appointment  of  an  administrator  can- 
not be  questioned  generally  in  a  collateral  proceeding.^  And  so 
if  the  court  shall  erroneously  appoint  other  persons,  than 
widow,  next  of  kin  or  creditor,  such  appointment  cannot  be 
attacked  in  a  collateral  proceeding.^*' 

396.    Executor's  duty  and  custodian's  duty  to  present  will. 

Section  2,  Chapter  3,  entitled,  ''Administration  of  Estates," 
provides :  "It  shall  be  the  duty  of  any  person,  knowing  that  he 
is  named  or  is  appointed  as  the  executor  of  the  last  will  and  tes- 

3— Section      23,      chapter      25,  7— Fitzgerald  v.  Clancy,   49   III. 

"Clerks  of  Courts."    Starr  &  Curtis  465. 

Annotated  Statutes  of  Illinois,  Vol.  8 — Illinois    Central    Ry.    Co.    v. 

1,  p.  893;  Kurd's  R.  S.  of  111.,  1905,  Cragin,  71  111.  177. 

same  section  and  chapter,  p.  457.  9 — Hobson  v.  Ewen,  62  111.  146; 

4— Schnell    v.    Chicago,    38    111.  Duffin  v.  Abbott,  48  111.  17;  Wright 

382.  V.  Wallbaum,  39  111.  554;    Schnell 

5 — Baker  v.  Brown,  18  111.  91.  v.  Chicago,  38  111.  382. 

6 — Rosenthal    v.    Prussing,    108  10 — Schnell    v.    Chicago.    38    111. 

111.  128.  382;     Unknown     Heirs     of    Lang- 


worthy  V.  Baker,  23  111.  484. 


21 


322  THE    LAW   OF   ESTATES. 

tament  of  any  person  deceased,  within  thirty  days  next  after  the 
decease  of  the  testator,  to  cause  such  will  to  be  proved  and  re- 
corded in  the  proper  county;  or  to  present  the  will  and  declare 
his  refusal  to  accept  of  the  executorship,  "^i 

"Any  person  or  persons  who  may  have  in  his  or  her  posses- 
sion any  last  will  or  testament  of  another,  for  safe  keeping  or 
otherwise,  shall,  immediately  upon  the  death  of  the  testator  or 
testatrix,  deliver  up  said  will  to  the  County  Court  of  the  proper 
county;  and  upon  a  failure  or  refusal  so  to  do,  the  County 
Court  may  issue  attachment,  and  compel  the  production  of  the 
same,"  etc.^^ 

397.  Age  and  qualification  of  executors.  Section  3  of  the 
Administration  Act  provides  as  follows:  "Persons  of  the  age 
of  seventeen  years,  of  sound  mind  and  memory,  may  be  ap- 
pointed executors;  but  when  a  person  appointed  executor  is, 
at  the  time  of  proving  the  will,  under  the  age  of  twenty-one 
years,  or  of  unsound  mind,  or  convicted  of  any  crime  rendering 
him  infamous,  administration  with  the  will  annexed  may  be 
granted  during  his  minority  or  other  disability,  unless  there  is 
another  executor  who  accepts  the  trust,  in  which  case  the  estate 
shall  be  administered  by  such  other  executor  until  the  minor 
arrives  at  full  age  or  the  other  disability  is  removed,  when,  upon 
giving  bond  as  in  other  cases,  he  may  be  admitted  as  joint  execu- 
tor with  the  former.  When  a  married  woman  is  executrix,  her 
husband  may  give  bond  with  her  for  her  faithful  performance 
of  the  trust  as  in  other  cases.  "^^ 

398.  Executor's  power  and  liability  before  probate  of  will. 

Section  4  of  the  Administration  act,  is  as  follows :    ' '  The  power 

11— Starr    &    Curtis    Annotated  Kurd's  R.   S.   of  111.,   1905,   same 

Statutes  of  Illinois,  Vol.  1,  pp.  269,  section  and  chapter,  p.  2052. 

270;   Kurd's  R.  S.  of  111.,  1905,  p.  13— Section    3,   chapter   3,    "Ad- 

104.    Kesterberg  v.  Clark,  166.  245.  ministration  of  Estates."     Starr  & 

12 — Sectirn     12,     chapter     148,  Curtis  Annotated  Statutes  of  Illi- 

"Wills."    Starr  &  Curtis  Annotated  nois,  Vol.  1,  p.  270;   Kurd's  R.  S. 

Statutes  of  Illinois,  Vol.  3,  p.  4041;  of  III.,  1905,  p.  104. 


ADMINISTRATION— CONTINUED.  323 

of  the  executor  over  the  testator's  estate,  before  probate  of  the 
will  and  obtaining  letters  testamentary,  shall  extend  to  the 
burial  of  the  deceased,  the  payment  of  the  necessary  funeral 
charges,  and  the  taking  care  of  the  estate;  but  in  all  such  cases 
if  the  will  is  rejected  when  presented  for  probate,  and  such  ex- 
ecutor thereby  never  qualifies,  he  shall  not  be  liable  as  an  execu- 
tor of  his  own  wrong,  unless  upon  refusal  to  deliver  up  the 
estate  to  the  person  authorized  to  receive  the  same.  Provided, 
that  this  section  shall  not  be  construed  to  exempt  any  person, 
claiming  to  be  executor  as  aforesaid,  for  any  waste  or  misappli- 
cation of  such  estate."^* 

Under  the  statute  law  of  Indiana,  similar  to  that  of  Illinois, 
it  was  held :  That  a  person  named  as  executor  in  a  will,  who  had 
never  taken  out  letters  testamentary,  had  no  power  as  executor 
under  such  appointment  by  will  to  release  a  mortgage  of  real 
estate,  ^^  And  where  a  testator  died  leaving  a  large  estate ;  and 
under  his  will,  the  personal  estate,  after  the  payment  of  debts, 
etc.,  was  bequeathed  to  his  children.  The  widow  of  the  testator 
received  and  took  one  United  States  government  six  per  cent 
bond  of  the  denomination  of  $1,000,  belonging  to  the  estate  and 
never  accounted  for  the  same.  By  bill  in  equity,  the  com- 
plainant, a  son  of  the  testator,  sought  to  recover  the  amount  of 
said  bond.  It  appeared  from  the  evidence,  that  the  complainant 
had,  by  assignments,  acquired  the  interests  of  the  other  legatees 
in  and  to  the  personal  estate,  and  that  the  executor  had  settled 
the  estate,  and  this  bond  taken  by  the  widow  was  not  needed 
to  pay  debts.  The  defendant  set  up  the  defense,  that  the  bond 
had  been  applied  by  the  defendant  in  part  payment  of  a 
promissory  note  for  $1,500  which  had  been  given  by  the  testator 
in  his  lifetime,  to  one  M,  The  widow  being  named  as  executrix 
had  never  qualified  as  such,  and  therefore  she  stood  as  to  her 
acts,  an  executrix  de  son  tort.     Held:     That  under  the  well 

14— Section   4,   chapter   3,   "Ad-    nois,  Vol.  1,  p,  270;  Kurd's  R.  S, 
ministration  of  Estates."    Starr  &     of  III.,  1905,  p.  104. 
Curtis  Annotated  Statutes  of  Illi-         15— Wall   v.    Bissell,    125    U.    S, 

382. 


324  THE    LAW    OF   ESTATES. 

settled  doctrine,  an  executor  de  son  tort  of  a  solvent  estate 
may  discharge  himself,  even  against  the  demand  of  the  rightful 
executor,  by  proving  debts  paid  to  the  amount  of  the  goods 
received  which  had  belonged  to  the  deceased.^^  In  a  proceed- 
ing against  an  executor  dc  son  tort,  the  declaration  should 
charge  him  as  executor  generally.  But  if  such  executor  de  son 
tort  subsequent  to  the  act  charged,  has  been  granted  letters 
of  administration,  he  is  thereby  relieved  of  tortious  liability.^ '^ 
But  the  executor  binds  himself  personally,  unless  he  obtains 
agreements  with  the  persons  with  whom  he  deals  or  makes  con- 
tracts to  look  to  the  funds  of  the  estate  which  he  represents ;  and 
this,  notwithstanding  the  power  of  the  executor  to  make  agree- 
ments that  will  hold  the  estate  liable.^  ^ 

399.  Death — failure  of  part  of  executors  to  qualify.  Section 
5  of  the  Administration  act  is  as  follows :  ' '  Where  two  or  more 
executors  are  appointed  in  and  by  the  same  will,  and  one  or  more 
of  them  dies,  refuses  to  take  upon  himself  the  executorship,  or 
is  otherwise  disqualified,  letters  testamentary  shall  be  granted 
thereon  to  the  other  person  or  persons  so  named,  not  renouncing 
as  aforesaid,  and  not  disqualified.  "^^ 

400.  Oath  of  executor  or  administrator.  As  to  form  and 
detail  is  set  forth  by  section  6  of  the  Administration  act  as  fol- 
lows: "Every  executor  or  administrator  with  the  will  annexed, 
shall,  at  the  time  of  proving  the  will  and  granting  letters  testa- 
mentary, or  of  administration,  take  and  subscribe  the  following 
oath,  to-wit:  (at  large  set  forth).    Which  said  oath  shall  be  ad- 

16 — McConnell  v.  McConnell,  94  tion  25,  97  chapter  3,  "Admiuistra- 

111.  295;   Weeks  v.  Gibbs,  9  Mass.  tion  of  Estates."     Starr  &  Curtis 

72;   Beagon  v.  Long,  21  Ind.  264;  Annotated     Statutes     of     Illinois, 

Tobey  v.  Miller,  54  Me.,  480;  Wil-  Vol    1,    pp.    270,    280,    320;    Kurd's 

liams  on   Executors,   267.  R.  S.  of  111.  1905,  pp.  104,  109,  121; 

17— Moore  v.  Wright,  4  111.  App.  Clinefelter    v.    Clinefelter,    16    111. 

443.  329;  Wisdom  V.  Becker,  52  111.  342; 

18— Miller  v.  Didisheim,  95   111.  Stoff  v.  McGinn,  178  111.  55;  Ward- 

App.  322,  and  cases  cited.  well  v.  McDowell,  31  111.  364. 

19— R.  S.   1845,  p.  541;    see  sec- 


ADMINISTRATION— CONTINUED.  325 

ministered  by  the  clerk  of  the  County  Court,  and  be  attached 
to  and  form  a  part  of  the  probate  of  said  will.''^** 

401.  Bond  of  executor  and  administrators  with  the  will  an- 
nexed. Section  7  of  the  administration  act  is  as  follows:  "All 
executors  hereafter  appointed,  imless  the  testator  shall  other- 
wise direct  in  the  will,  and  all  administrators  with  the  will  an- 
nexed, shall,  before  entering  upon  their  duties,  enter  into  bond, 
with  good  and  sufficient  security,  to  be  approved  by  the  Coimty 
Court,  and  in  counties  having  a  Probate  Court,  by  the  Probate 
Court,  in  a  sum  double  the  value  of  the  personal  estate,  and  pay- 
able to  the  People  of  the  State  of  Illinois,  for  the  use  of  the 
parties  interested,  in  the  following  form,  to- wit:  (form  set 
forth).  Which  said  bond  shall  be  signed  and  sealed  by  the 
said  executor  (or  administrator),  and  his  securities,  and  filed 
in  the  office  of  the  clerk  of  the  County  Court,  or  office  of  the 
clerk  of  the  Probate  Court  in  counties  having  a  Probate  Court, 
and  spread  upon  the  records;  and  that  where  it  becomes  neces- 
sary to  sell  the  real  estate  of  any  intestate,  for  the  payment  of 
debts  against  his  estate,  under  the  provisions  of  this  act,  or  in 
case  real  estate  is  to  be  sold  under  any  provisions  of  a  will,  the 
court  shall  require  the  executor  (or  administrator),  to  give 
further  and  additional  bond,  with  good  and  sufficient  security, 
to  be  approved  by  the  court,  in  a  sum  double  the  value  of  the 
real  estate  of  the  decedent  sought  to  be  sold,  and  payable  to  the 
People  of  the  State  of  Illinois,  for  the  use  of  the  parties  inter- 
ested, in  the  form  above  prescribed.  21 

In  a  suit  on  bond,  the  People  may  sue  for  use  of  several  plain- 
tiffs, for  all  damages  sustained  without  reference  to  use  to  be 

20— R.    S.    1845,   p.    541;    sec.    6  1881.    Laws  of  1881,  p.  1.    See  also 

chapter     3,      "Administration,     of  section    1,     chapter    103,    "Official 

Estates."      Starr    &   Curtis    Anno-  Bonds."     Section   25,     chapter     3, 

tated  Statutes  of  Illinois,  Vol.  1,  p.  'Administration  of  Estates."  Starr 

271;   Kurd's  R.  S.  of  111.,  1905,  p.  &    Curtis    Annotated    Statutes    of 

105.  Illinois,  Vol.  1,  pp.  271,  280;   Vol. 

21 — As  amended  by  act  approved  2,   p.    2831;    Kurd's  R.    S.   of   111., 

May   30,    1881.     In   force   July   1,  1905,  pp.  105,  109,  1417. 


326  THE    LAW   OF   ESTATES. 

made  of  moneys  recovered.  ^^  Several  actions  are  maintainable 
on  executor's  bond.^^  The  judgment  on  bond  may  be  for  dam- 
ages sustained  and  not  for  penalty  of  bond.^*  A  debt  may  be 
maintained  on  bond  by  creditors  holding  judgment  against  ad- 
ministrator though  claim  never  had  been  allowed  by  or  pre- 
sented to  Probate  Court.^s  The  bond  required  to  be  given  to 
secure  the  proceeds  of  the  sale  of  land  by  an  executor,  which  is 
authorized  to  be  sold  by  the  terms  of  the  will  or  by  the  decree  of 
the  court,  must  be  given  as  a  separate  and  independent  bond  to 
secure  such  fund,  regardless  of  the  fact  whether  the  land  lies 
within  or  outside  the  State  of  Illinois.  "^^  There  appears  to  be 
much  conflict  in  authorities  over  the  question,  whether  the  sale 
of  real  estate  under  the  provisions  of  a  will  or  under  a  decree 
of  court,  without  first  giving  a  bond  as  provided  by  the  last 
clause  of  section  7  of  the  Administration  act,  would  be  null 
and  void.  In  the  case  of  Elting  v.  First  National  Barik,^'^ 
the  facts  of  the  record  show,  page  381-382:  A  decree  was  en- 
tered by  the  County  Court  for  the  sale  of  real  estate  by  the 
executrix  to  pay  debts;  as  such  she  gave  no  further  and  addi- 
tional bond  as  required  by  section  7  above;  after  the  sale  the 
executrix  made  no  report  thereof  to  the  court  as  required  by 
section  109  of  the  same  act ;  but  report  was  made  and  confirmed 
before  the  next  term  of  court;  the  sale  being  made  Avithout  giv- 
ing the  full  notice  required  by  said  section  109.  The  executrix 
also,  though  apparently  selling  the  real  estate  in  question  to  her 
brother,  really  sold  to  herself.  The  court  in  that  case  reviewing 
the  facts,  finds  gross  mismanagement  of  the  estate  and  sets  the 
sale  aside,  saying,  page  384:  "Where  the  circumstances  are 
such  as  appear  in  this  record,  creditors,  who  have  reduced  their 
claims  to  judgment,  can  file  a  bill  in  the  proper  court  to  have 
such  a  sale  set  aside."    But  it  is  also  held,  that  a  general  bonds- 

22— People  v.  Stacey,  6  111.  App.  25— People  v.  Allen,  8  111.  App. 

521.  17. 

23— People  v.  Randolph,   24   111.  26— People  v.   Hoffman,  182   111. 

324.  1190,  409. 

24— People  v.   Summers,   16   111.  27—173  111.  368. 
173. 


ADMINISTRATION— CONTINUED.  327 

man  is  not  liable  where  executor,  administrator  or  guardian  is 
required  to  discharge  special  official  duties,  and  for  the  faithful 
performance  of  which  they  are  required  to  give  a  special  bond, 
in  the  absence  of  any  declaration  in  or  provision  of  a  statute, 
that  the  general  bondsman  shall  be  liable  for  the  faithful  dis- 
charge of  the  special  duty.^s  In  the  case  of  Frothingham  v. 
Petty, ^^  the  question  was  raised  that  the  sale  was  void  and 
should  be  set  aside  because  the  bond  required  by  section  7  of 
the  administration  act  was  not  given  nor  required  by  the  order 
of  the  county  court,  the  court  in  its  opinion  on  page  431  say: 
"We  do  not  fefel  w^arranted  in  holding  that  the  failure  of  the 
administrator  de  bonis  non  to  give  such  bond  would  render  the 
sale  to  Calhoun  void.^°  "The  oversight  of  the  court  to  require 
the  administrator  de  bonis  non  to  give  a  bond  was  but  a  mere 
irregularity  and  should  not  defeat  the  title  of  appellants,  who 
were  not  parties  to  the  record  and  who  obtained  this  land  by 
mesne  conveyances  from  the  purchaser  at  such  sale,  and  who 
have  been  in  the  quiet  and  peaceful  possession  of  the  same 
for  a  number  of  years  and  expended  considerable  sums  in 
improvements. ' '  It  also  appears  by  the  record  of  that  case  that 
the  administrator  de  bonis  non  faithfully  performed  the  entire 
duties  of  his  office  and  applied  all  the  proceeds  of  the  sale  of 
real  estate  upon  the  debts  of  his  intestate  and  fully  accounted 
for  the  same  to  the  probate  court. 

or  administrator  to  act  in  all  matters  concerning  the  estate. 
They  are  the  key  of  authority  recognized  by  banks  and  all  others, 

28— People  V.  Hoffman,  182  111.  123;  State  v.  Johnson,  55  Mo.  80; 

390;   Board  of  Supervisors  of  Mil-  United    States    v.    Cheeseman,    3 

waukee  Co.  V.  Chilers,  45  Wis.  281;  Sawyer,   424;    State  v.   Young,   23 

Grumpier  v.  Governor,  1  Dev.  52;  Minn.   551;    Henderson  v.   Coover, 

Governor  v.  Barr  id.  65;  Governor  4  Nev.  429;    Lyman  v.  Conkey,  1 

V.    Matlock,    id.    214;     Waters    v.  Mete,    317;    Williams    v.    Morton, 

State,  1  Gilm.  (111.)  302;  Common-  38  Me.   52. 

wealth  v.   Toms,   45   Pa.   St.   408;  29—197  111.  418. 

State  V.   Corey,    16   Ohio   St.   17;  30— Drake  v.   Kinsell,   38   Mich. 

People   V.   Moon,   3,    Scam.    (111.)  232, 


328  THE    LAW    OF   ESTATES. 

402.  When  security  not  required.  Section  8  of  the  admin- 
istration act  is  as  follows:  "When  any  testator  leaves  visible 
estate  more  than  sufficient  to  pay  all  his  debts,  and  by  will  shall 
direct  that  his  executors  shall  not  be  obliged  to  give  security,  in 
that  case  no  security  shall  be  required,  unless  the  county  court 
shall  see  cause,  from  its  own  knowledge,  or  the  suggestions  of 
creditors  and  legatees,  to  suspect  the  executors  of  fraud,  or  that 
the  personal  estate  will  not  be  sufficient  to  discharge  all  the 
debts,  in  which  case  such  a  court  may  require  security,  and 
the  same  shall  be  given  before  or  after  letters  testamentary  are 
granted,  notwithstanding  any  directions  to  the  contrary  in  the 
will.  "31 

403.  Removal  of  executors  or  administrators  to  different 
county.  Section  9  of  the  Administration  Act  provides; 
"Whenever,  by  the  division  of  any  county,  or  the  removal  of 
the  executor  or  administrator  to  whom  letters  have  been  granted, 
he  is  by  such  removal  or  division  beyond  the  limits  of  the  county 
in  which  said  letters  were  granted,  and  in  some  other  county  of 
this  state,  the  county  court  of  the  county  in  which  the  letters 
were  or  are  granted  shall  proceed  and  settle  the  estate  in  the 
same  manner  as  if  no  removal  or  division  had  occurred.  "^^ 

404.  The  form  of  letters  testamentary,  as  given  in  section  10 
of  the  Administration  Act,  should  be  strictly  and  fully  complied 
with.  These  forms  are  a  part  of  the  procedure  in  a  court  of 
probate  and  cannot  be  disregarded.  They  are  important  in  the 
administration  of  an  estate,  being  directly  prescribed  by  statute. 
Such  are  not  only  the  certificate  of  office  and  evidence  of  qual- 
ification, but  it  is  upon  the  strength  of  such  letters,  assets  of  the 
decedent's  estate  are  collected,  or  give  authority  to  the  executor 

31— R.  S.  of  111.  1845,  p.  542;  32— R.  S.  1845,  p.  542,  sections 
section  8,  chapter  3,  "Administra-  5  and  30.  Chapter  3,  "Administra- 
tion of  Estates."  Starr  &  Curtis  tion  of  Estates."  Starr  &  Curtis 
Annotated  Statutes  of  Illinois,  Annotated  Statutes  of  Illinois, 
Vol.  1,  p.  272.  sec.  28,  p.  282.  Same  Vol.  1,  pp.  272,  282;  Kurd's  R.  S. 
chapter;  Kurd's  R.  S.  of  111.  1905,  of  111.,  1905,  same  sections  and 
pp.  105,  109.  chapter,   pp.   105,   109. 


ADMINISTRATION— CONTINUED. 


329 


upon  which  money  of  a  decedent  is  paid  to  an  executor  or  admin- 
istrator.33 


33 — Section  10,  chapter  3,  "Ad- 
ministration of  Estates."  Starr 
&  Curtis  Annotated  Statutes  of 
Illinois,  Vol.  1,  p.  272;  Kurd's  R. 
S.  of  111.,  1905,  same  section  and 
chapter,   p.    105. 

Note. — The   various   forms   pre- 


scribed by  the  Statute  of  Illinois 
will  be  found  in  Vol.  2,  giving  pre- 
scribed forms.  No  reference  is 
necessary  to  such  here,  as  the  foot 
notes  to  such  forms  refer  to  the 
section  of  the  statute  to  which 
such  apply  throughout  this  work. 


CHAPTER   XIX 

ADMINISTRATORS  TO  COLLECT 


Sec. 

405.  Administrators       to       collect 

when  appointed. 

406.  Oath  powers  as  to  perishable 


Sec. 

goods,  right  to  bring  suit, 
termination  of  powers  of 
such. 


Sec.  405.  Administrators  to  collect  when  appointed.  Sec-/^ 
tion  11  of  the  administration  act  is  as  follows:  "During  any 
contest  in  relation  to  the  probate  of  any  will,  testament  or  codi- 
cil, before  the  same  is  recorded,  or  until  a  will  which  may  have 
once  existed,  but  is  destroyed  or  concealed,  is  established,  and 
the  substance  thereof  committed  to  record,  with  proof  there- 
upon taken,  or  during  any  contest  in  regard  to  the  right  of 
executorship,  or  to  administer  the  estate  of  any  person  dying 
either  testate  or  intestate,  or  whenever  any  other  contingency 
happens  which  is  productive  of  great  delay  before  letters  testa- 
mentary or  of  administration  can  be  issued  upon  the  estate  of 
such  testator  or  intestate,  to  the  person  or  persons  having  legal 
preference  to  the  same,  the  county  court  may  appoint  any  per- 
son or  persons  as  administrators,  to  collect  and  preserve  the 
estate  of  any  such  decedent,  until  probate  of  his  will,  or  until 
administration  of  his  estate  is  granted,  taking  bond  and  secu- 
rity for  the  collection  of  the  estate,  making  an  inventory  thereof, 
and  safe  keeping  and  delivering  up  the  same  when  thereunto 
required  by  the  court,  to  the  proper  executor  or  administrator, 
whenever  they  shall  be  admitted  and  qualified  as  such.  "^^ 

An  administrator  to  collect  has  no  authority,  independently 

34 — Sections  11  and  25,  chapter  ton's    Supplements    thereto.      Vol. 

3.     "Administration     of     Estates."  1;   pp.  272,  273,  284;   Vol.  4,  p.  34; 

Starr  &  Curtis  Annotated  Statutes  Kurd's  R.  S.  of  111.  same  sections 

of  Illinois,  with  Jones  &  Adding-  and  chapter,  pp.  106,  110. 

330 


ADMINISTRATORS    TO    COLLECT.  331 

of  his  order  of  appointment,  to  pay  out  any  money  of  the  estate 
for  any  purpose.  Such  officer  has  no  authority  to  pay  widow's 
award  or  claims;  he  has  only  power  "to  collect  and  preserve 
the  estate  of  any  such  decedent,  until  probate  of  his  will  or 
until  administration  of  his  estate  is  granted."  The  statutory 
letters  issued  to  such  administrator  are  to  the  same  effect  and 
confer  no  other  power.  (1)  The  bond  required  of  such  is  con- 
ditioned that  he  shall  "deliver  to  the  person  or  persons  author- 
ized by  the  court,  as  executor  or  administrator  to  receive  the 
same,  all  goods,  etc.,"  which  shall  come  to  his  posses- 
sion (Section  13  of  administration  act) ;  (2)  Section  17  of  the 
same  act  (3)  provides  that  "on  the  granting  of  letters  testa- 
mentary or  of  administration,  the  power  of  such  collector  so 
appointed  shall  cease,  and  it  shall  be  his  duty  to  deliver,  on 
demand,  all  property  and  money  of  the  deceased  which  shall 
have  come  to  his  hands  or  possession,"  etc.,  to  the  person  or  per- 
sons obtaining  such  letters;  and  in  case  any  such  collector  shall 
refuse  or  neglect  to  deliver  over  such  property  or  money  to  his 
successor  when  legal  demand  is  made  therefor,  such  person  so 
neglecting  or  refusing,  etc.,  "shall  forfeit  all  claim  to  any  com- 
mission for  collecting  and  preserving  the  estate.  "^^ 

In  re  Estate  of  Wincox,^^  page  454  of  the  opinion,  it  is 
held:  He  is  an  administrator  to  collect,  and  only  that. 
When  he  assumed  the  right  to  pay  out  any  money  belonging 
to  said  estate  he  did  so  at  his  peril,"  and  on  same  page:  "The 
claim  of  appellant  to  be  allowed  $1,750  for  attorney  fees  is  for 
that  sum  alleged  to  have  been  paid  to  Moses  Solomon.  We 
notice  in  this  record  that  when  the  $20,000  note  described  in 
appellant's  inventory  was  paid,  $2,000,  part  of  the  proceeds, 
was  applied  in  part  payment  of  a  personal  debt  due  from  said 
attorney  to  H.  H.  Walker,  page  455:     Said  note  of  $20,000 

35— Section  12,   (1),  13,   (2),  17,  32,  and  cases  cited  in  each  volume 

(3),  chapter  3,  "Administration  of  under  sections  of  statute  in  ques- 

Estates."  Starr  &  Curtis  Annotat-  tion;    Kurd's    R.    S.    of    111.    1905, 

ed  Statutes  of  Illinois,  with  Jones  same    sections    and    chapter,    pp. 

&  Addington's  Supplements  there-  106,  107. 

to.     Vol.  1,  pp.  273,  274;  Vol.  4,  p.  36—186,  111.  445. 


332  THE    LAW    OF   ESTATES. 

had  not  matured.  Said  attorney  negotiated  for  the  payment 
thereof  and  received  all  the  proceeds.  Appellant  had  no  right 
or  authority  whatever  to  sell  said  note  or  accept  payment 
thereof  prior  to  maturity."  He  has  no  power  to  make  invest- 
ments with  the  money  due  the  estate.^®*  The  appointment  of  an 
administrator  to  collect  is  authorized  where  an  appeal  has 
been  taken  from  order  admitting  will  to  probate,  and  where 
widow's  award  has  not  been  set  off  and  assets  of  estate  are  in 
danger  of  being  lost  pending  determination  of  appeal.^  "^ 

406.  Oath — powers  as  to  perishable  goods — the  right  to 
bring  suit,  and  the  termination  of  powers  of  administrators  to 
collect.  As  given  by  statute  are  set  forth  in  sections  14,  15, 
16  and  17  of  the  Administration  Act,  and  to  which  reference 
is  made.^s 

In  bringing  suit  by  an  administrator  to  collect,  he  should 
aver  his  appointment  and  should  profert  his  letters  of  adminis- 
tration.3^  An  administrator  to  collect  must  account  upon  legal 
demand  to  pay  over.^^  And  he  forfeits  his  right  to  commis- 
sions if  he  neglects  to  account  and  deliver  up  property  of  es- 
tate.^^  And  a  failure  to  pay  over  amount  admittedly  in  his 
hands,  is  not  excused  by  his  dispute  of  liability  as  to  further 
sums  likewise  ordered  to  be  paid  over  to  administrator  succeed- 
ing him.^2  i^  jg  aigQ  held,  if  the  court  has  jurisdiction  of  the 
subject  matter  and  of  the  person  it  appoints  as  administrator 
its  act  is  not  void,  however  erroneous  it  may  be ;  and  the  legality 

36a — People  v.  Solomon,  184  111.  ute  noted  in  each  volume;  Kurd's 

490,    499,    500.  R.   S.   of  111.,   1905,   same   sections 

37— Schenk    v.    Schenk,    80    111.  and  chapter,  pp.   106,  107;    Miller 

App.   613.  V.  Kingsbury,  28  111.  App.  532. 

38— Sections   14,   15,   16  and  17,  39— Foster  v.  Adler,  81  111.  App. 

chapter  3,  "Administration  of  Es-  655. 

tates."     Starr  &  Curtis  Annotated  40 — Solomon   v.    Holden,   72   111. 

Statutes  of  Illinois,  with  Jones  &  App.  353. 

Addington's    Supplements    thereto.  41 — In  re  Estate  of  Wincox  186 

Vol.   1,   p.   274;    Vol.   4,  p.   32,  and  111.  456. 

cases  cited  under  sections  of  stat-  42 — Solomon  v.   People,  191  111. 

292. 


ADMINISTRATORS    TO    COLLECT. 


333 


of  such  appointment  cannot  be  questioned  in  a  suit  on  the  bond 
of  a  former  administrator  for  failure  to  turn  over  the  funds 
to  the  administrator  appointed  as  his  suecessor.'*^ 


43— Solomon  v.  People,  191  111. 
292.  In  that  case  the  court  held, 
that  the  sureties  on  the  bond  of 
the  administrator  were  not  liable 
for  the  penalty  of  twenty  per  cent 
prescribed   by   section    17    of   the 


Administration  Act,  which  was 
included  in  the  judgment  of  the 
circuit  court,  a  remittitur  being 
allowed  of  such  penalty.  See  also 
Solomon  v.  People,  89  111.  App. 
374. 


CHAPTER  XX 


PUBLIC  ADMINISTRATORS 


Sec. 

407.  Public    administrator,    Gover- 

nor appoints,  term  of  oflBce, 
duty. 

408.  Wlien   they   shall   administer. 

409.  Who  to  be  appointed  admin- 

istrator. 

410.  Bond,   neglect,   removal   addi- 

tional security. 


Sec. 

411.  Where  there  is  a  widow,  etc., 

letters  revoked. 

412.  Disposition   of  unclaimed   es- 

tate. 

413.  When  public  administrator  to 

protect  the  estate. 


Sec.  407.  Public  administrator,  governor  to  appoint — term 
of  ofl5ce — duties.  In  1881,  the  legislature  revised  the  act  per- 
taining to  public  administrators  passed  in  1845 ;  the  act  as  re- 
written went  into  force  July  1,  1881 ;  the  statute  is  as  follows, 
sections  44  to  50  inclusive,  chapter  3,  entitled  "Administration 
of  Estates"  (Sec.  44):  "The  governor  of  this  state,  by  and 
with  the  advice  and  consent  of  the  senate,  shall,  before  the  first 
Monday  in  December,  1881,  and  every  four  years  thereafter, 
appoint  in  each  county  in  this  state,  and  as  often  as  any  vacancy 
may  occur,  a  suitable  person  to  be  known  as  public  administra- 
tor of  such  county,  who  shall  hold  his  office  for  the  term  of 
four  3'^ears  from  the  first  Monday  of  December,  1881,  or  until 
his  successor  is  appointed  and  qualified;  and  the  public  admin- 
istrators in  office  at  the  time  of  the  first  appointment  under  the 
provisions  of  this  section  shall,  immediately  upon  the  qualifica- 
tion of  the  persons  appointed  under  the  provisions  hereof,  turn 
over  all  moneys,  books  and  papers  appertaining  to  their  offices, 
respectively,  to  the  persons  so  appointed;  and  such  public  ad- 

334 


PUBLIC    ADMINISTRATORS.  335 

mkiistrators  so  appointed  shall  proceed  to  settle  up  all  unset- 
tled estate  in  accordance  with  law."^^ 

**  Every  person  appointed  as  a  public  administrator  shall,  be- 
fore entering  upon  the  duties  of  his  office,  take  and  subscribe 
and  file  in  the  office  of  the  clerk  of  the  county  court,  the  fol- 
lowing oath,  to-wit,  prescribed  by  statute.^^ 

408.  When  they  shall  administer.  Section  (46) :  "When- 
ever any  person  dies  seized  or  possessed  of  any  real  estate  within 
this  state,  or,  having  any  right  or  interest  therein,  has  no  rela- 
tive or  creditor  within  this  state  who  will  administer  upon  such 
deceased  person's  estate,  it  shall  be  the  duty  of  the  county 
court,  upon  application  of  any  person  interested  therein,  to 
commit  the  administration  of  such  estate  to  the  public  admin- 
istrator of  the  proper  county. '  '^^ 

In  Langworthy  v.  Baker^"^  it  was  held,  to  give  the 
county  court  jurisdiction  to  commit  an  estate  to  a  public  ad- 
ministrator, it  should  affirmatively  appear  to  be  preserved  of 
record,  that  there  was  not  any  relative  or  creditor  of  the  de- 
ceased within  the  state,  to  whom  administration  might  be 
granted;  and  that  the  application  was  made  by  a  party  inter- 
ested in  the  estate;  and  if  the  record  fails  to  show  the  jurisdic- 
tional facts  necessary  to  authorize  the  grant  of  letters,  the  whole 
proceedings  will  be  defeated,  and  a  sale  made  thereunder  will 
be  declared  void  on  a  writ  of  error.  In  Branch  v.  Banking 
this  section  of  the  statute  was  construed  and  it  was  held 
its  language,  ''any  person  interested,"  means,  the  words  are 

44 — See  sections  44  to  50  inclu-  4G — Section  4G,   chapter  3,  "Ad- 

sive,    chapter    3,    "Administration  ministration  of  Estates."     Starr  & 

of   Estates."     Starr   &   Curtis   An-  Curtis  Annotated  Statutes  of  Illi- 

notated    Statutes   of   Illinois,   Vol.  nois.  Vol.  1,  p.  288;    Kurd's  R.  S. 

1,  pp.  287,  288,  289;    Kurd's  R.  S.  of   111.,    1905,    p.    112. 

of    111.,    1905,    same    sections    and  47—23  III.  430;  see  also  the  fol- 

chapter,  pp.  112,  113.  lowing     cases,     modifying     Lang- 

45 — Section   45,  chapter  3,   "Ad-  worthy  v.  Baker,  supra.  Schnell  v. 

ministration  of  Estates."     Starr  &  Chicago,    38    111.    383;    Wright    v. 

Curtis  Annotated   Statutes  of  Illi-  Wallbaum,  39  111.  554;    Hobson  v. 

nois.    Vol.    1,    p.    288;    Kurd's    R.  Ewan,  62  111.  146. 
S.  of  111.,  1905,  p.  112. 


336  THE    LAW    OF   ESTATES. 

general,  with  no  limitation  in  respect  to  the  person  applying 
for  letters,  as  there  is  nothing  in  our  statute  indicating  an  in- 
tention to  confine  this  right  to  citizens  of  this  state.*^  That  un- 
der the  above  section  of  the  statute,  administration  may  be 
granted  to  public  administrator  with  will  aunexed.^^  But  in  this 
connection  we  call  attention  to  the  act  of  the  legislature  of  this 
state,  passed  in  1905  and  in  force  July  1,  1905,  which  confers 
additional  powers  upon  public  administrators  or  greatly  en- 
larges those  theretofore  existing.  The  act  is  as  follows :  An  act 
entitled  "An  act  to  amend  section  18  of  an  act  entitled  'An  act 
in  regard  to  the  administration  of  estates,'  "  approved  April  1, 
1872,  in  force  July  1,  1872,  approved  May  12,  1905,  in  force 
July  1,  1905.50 

409.  Who  to  be  appointed  administrator — death  to  be  proved. 

"Administration  of  the  estate  of  all  persons  dying  intestate 
shall  be  granted  to  some  one  or  more  of  the  persons  hereinafter 
mentioned  and  they  are  respectively  entitled  to  preference 
thereto  in  the  following  order: 

1st.  To  the  surviving  husband  or  wife  or  any  competent 
person  nominated  by  him  or  heiV 

2d.  To  the  children  or  any  competent  person  nominated  by 
them. 

3d.  To  the  father  or  any  competent  person  nominated  by 
him. 

4th.  To  the  mother  or  any  competent  person  nominated  by 
her. 

5th.  To  the  brothers  or  any  competent  person  nominated  by 
them. 

6th.  To  the  sisters  or  any  competent  person  nominated  by 
them. 

7th.  To  the  grandchildren  or  any  competent  person  nomi- 
nated by  them. 

48—108      111.      444.        Rosenthal  50— Section   18,   chapter  3,   "Ad- 

Admr.  v.  Renick,  44   111.  207.  ministration  of  Estates"  as  amend- 

49— Branch    v.   Rankin,    108    111.  ed   in  1905.     See  Kurd's  R.   S.  of 

444.  111.,  1905.  p.  107. 


PUBLIC    ADMINISTRATORS.  337 

8th.  To  the  next  of  kin  or  any  competent  person  nominated 
by  them. 

9th.  To  the  public  administrator  or  to  any  creditor  who  shall 
apply  for  the  same.  Provided,  that  only  such  persons  as  are  en- 
titled to  administer  under  this  act  shall  have  the  right  to  nom- 
inate. 

When  several  are  claiming  and  are  equally  entitled  to  admin- 
istration, the  court  may  grant  letters  to  one  or  more  of  them, 
preferring  relatives  of  the  whole  to  those  of  half  blood.  Pref- 
erence and  the  right  to  nominate  under  this  act  must  be  exer- 
cised within  sixty  days  from  the  death  of  the  intCotate,  at  the 
expiration  of  which  time  administration  shall  be  granted  to  the 
public  administrator.  In  all  cases  where  the  intestate  is  a  non- 
resident, and  in  all  cases  where  there  is  no  widow,  husband  or 
next  of  kin  entitled  to  a  distributive  share  in  the  estate  of  such 
intestate,  who  at  the  time  of  the  death  of  said  decedent  is  a  bona 
fide  resident  of  this  state,  administration  shall  be  granted  to  the 
public  administrator;  and  in  all  cases  where  any  contest  shall 
arise  between  the  widow,  heirs  at  law  or  next  of  kin  of  the 
decedent  in  relation  to  the  grant  of  letters,  and  it  shall  appear 
to  the  court  that  the  estate  of  said  decedent  is  liable  to  waste, 
loss  or  embezzlement  administration  to  collect  shall  be  granted 
to  the  public  administrator  of  the  proper  county  to  administer 
such  estate  until  said  contest  is  determined.  No  administration 
shall  in  any  case  be  granted  until  satisfactory  proof  shall  be 
made  to  the  county  court  to  whom  application  for  that  purpose 
is  made  that  the  person  in  whose  estate  letters  of  administra- 
tion are  requested  is  dead  and  died  intestate.  Provided,  that 
when  the  heirs  are  residents  of  this  state  and  the  estate  is  solvent 
and  without  minor  heirs  and  it  is  desired  by  the  parties  in  inter- 
est to  settle  the  estate  without  administration  this  law  shall  not 
apply.  And,  further,  provided,  that  no  non-resident  of  this 
state  shall  be  appointed  or  act  as  administrator  or  executor,  "^i 

410.  Bond — neglect — ^removal — additional  security.  "Sec. 
47.     It  shall  be  the  duty  of  the  county  court  to  require  of  a 

51— Kurd's   R.    S.    of   111..    1905,  p.  107. 
23 


338  THE    LAW    OF   ESTATES. 

public  administrator,  before  entering  upon  the  duties  of  his 
office,  to  enter  into  a  bond,  payable  to  the  people  of  the  State 
of  Illinois,  in  a  sum  of  not  less  than  five  thousand  dollars,  with 
two  or  more  securities,  approved  by  the  court,  and  conditioned 
that  he  will  faithfully  discharge  all  of  the  duties  of  his  office, 
and  the  court  may,  from  time  to  time,  as  occasion  shall  require, 
demand  additional  security  of  such  administrator  and  may  re- 
quire him  to  give  the  usual  bond  required  of  administrators  in 
other  cases,  touching  any  particular  estate  in  his  charge ;  and  in 
default  of  giving  such  bond  within  sixty  days  after  receiving 
his  commission,  or  in  default  of  giving  additional  security 
within  sixty  days  after  being  duly  ordered  by  said  court  so  to 
do,  his  office  shall  be  deemed  vacant,  and,  upon  certificate  of 
the  county  judge  of  such  fact,  the  governor  shall  fill  the  vacancy 
aforesaid. '  '^^ 

411.  Where  there  is  a  widow,  etc. — ^letters  revoked.  Section 
48:  "Whenever  administration  is  granted  to  any  public  ad- 
ministrator, and  it  shall  afterwards  appear  that  there  is  a  widow 
or  next  of  kin,  or  creditor  of  the  deceased,  entitled  to  the  pref- 
erence of  administration  by  this  act,  it  shall  be  the  duty  of  the 
county  court  to  revoke  the  letters  granted  to  such  public  admin- 
istrator, and  to  grant  the  same  to  such  widow,  next  of  kin  or 
creditor,  as  is  entitled  thereto.  Provided,  application  is  made 
by  such  person,  within  six  months  after  letters  were  granted  to 
the  public  administrator;  saving  to  such  administrator,  in  all' 

52— Section   47,   chapter   3,   "Ad-  R.   S.   of  111.,  1905,  pp.  1417,  1418, 

ministration  of  Estates."     Starr  &  1419. 

Curtis  Annotated   Statutes  of  Illi-  Under   the   statute   of  1845   and 

nois,  Vol.  1,  p.  288;   Kurd's  R.  S.  1872,    an     administrator     was     re- 

of  111.,  1905,  pp.  112,  113.     See  al-  quired  to  take  out  letters  and  give 

so  sections  1,   4,  13,   chapter   103,  bond    in     each    estate     when     ap- 

"Official    Bonds."     Starr   &   Curtis  pointment  was  made.  This  statute 

Annotated      Statutes     of     Illinois  now   in   force   passed    in    1881,   as 

with  Jones  &  Addington's  Supple-  applied    to    public    administrators, 

ments    thereto,    Vol.    2,    pp.    2831-  requires   a   permanent   bond   from 

2835;  Vol  4,  p.  907;  Vol.  5,  p.  406,  such    official,    and    such    bond    is 

and  cases  cited  under  sections  in  given    as    required    under   the    of- 

question   in   each   volume;    Kurd's  ficial  bond  act  cited  above. 


PUBLIC    ADMINISTRATORS.  339 

eases,  all  such  sums  of  money  on  account  of  commissions  or  ex- 
penses as  are  due  to,  or  incurred  by  him,  in  the  management  of 
said  estate.  "^3 

412.  Disposition  of  unclaimed  estate.  Section  49:  *'If  any 
balance  of  any  such  estate  as  may,  at  any  time,  be  committed 
to  any  public  administrator,  shall  remain  in  the  hands  of  such 
administrator,  after  all  just  debts  and  charges  against  such 
estate,  which  have  come  to  the  knowledge  of  such  public  admin- 
istrator within  two  years  after  the  administration  of  such  estate 
was  committed  to  him,  are  fully  paid  such  administrator  shall 
cause  the  amount  thereof,  with  the  name  of  the  intestate,  the 
time  and  place  of  his  decease,  to  be  published  in  some  news- 
paper published  in  his  county,  or  if  no  newspaper  is  published 
in  his  county,  then  in  the  nearest  newspaper  published  in  this 
state,  for  eight  weeks  successively,  notifying  all  persons  having 
claims  or  demands  against  such  estate  to  exhibit  the  same,  to- 
gether with  the  evidence  in  support  thereof,  before  the  countj^ 
court  of  the  proper  county,  within  six  months  after  the  date  of 
such  notice,  or  that  the  same  will  be  forever  barred;  and  if  no 
such  claim  is  presented  for  payment  or  distribution  within  the 
said  time  of  six  months,  such  balance  shall  be  paid  into  the 
treasury  of  said  county;  and  the  county  shall  be  answerable 
for  the  same,  without  interest,  to  such  persons  as  shall  there- 
after appear  to  be  legally  entitled,  on  order  of  the  county  court, 
to  the  same,  if  any  such  shall  appear.  "^^ 

413.  When  public  administrator  to  protect  the  estate.  Sec- 
tion 50:  "Upon  the  death  of  any  person  intestate,  not  leaving 
a  widow,  or  next  of  kin,  or  creditor,  within  this  state,  the  pub- 
lic administrator  of  the  county  wherein  such  person  may  have 
died,  or  when  the  decedent  is  a  non-resident,  the  public  admin- 

53 — Section  48,  chapter  3,  "Ad-  54 — Section  49,  chapter  3,  "Ad- 
ministration of  EJstates."  Starr  &  ministration  of  Estates."  Starr  & 
Curtis  Annotated  Statutes  of  Illi-  Curtis  Annotated  Statutes  of  Illi- 
nois, Vol.  1,  p.  288;  Kurd's  R.  S.  nois,  Vol.  1,  p.  289;  Kurd's  R.  S. 
of  111.,  1905,  p.  113.  of  111.,  1905,  p.  113. 


340  THE    LAW    OF    ESTATES. 

istrator  of  the  county  wherein  the  goods  and  chattels,  rights 
and  credits  of  such  decedent  shall  be,  may  take  such  measures 
as  he  may  deem  proper  to  protect  and  secure  the  effects  of  such 
intestate  from  waste  or  embezzlement,  until  administration 
thereon  is  granted  to  the  person  entitled  thereto,  the  expenses 
whereof  shall  be  paid  to  such  public  administrator,  upon  the 
allowance  of  the  county  court,  in  preference  to  all  other  demands 
against  such  estate,  funeral  expenses  excepted.  "^^ 

This  section  is  substantially  the  same  as  the  statute  of  1874, 
then  a  part  of  the  chapter  of  "Wills,"  sections  55,  57  of  that 
statute  being  construed  in  Rosenthal  v.  Prussing,^^  it  is  held 
that,  ' '  upon  the  death  of  a  non-resident  intestate  leaving  real  or 
personal  property  in  this  state,  a  creditor  of  the  estate  living 
in  this  state  is  entitled  to  a  preference  over  the  public  adminis- 
trator in  the  grant  of  letters  of  administration  upon  such  es- 
tate." The  grant  of  letters  of  administration  with  the  will  an- 
nexed, to  the  public  administrator,  upon  the  estate  of  a  deceased 
non-resident  debtor,  on  the  application  of  a  non-resident 
creditor  whose  claim  had  been  allowed  in  the  state  of  the 
decedent's  domicile,  will  not  necessarily  give  such  creditor  an 
undue  advantage  over  other  foreign  creditors.  They  may  have 
their  claims  also  allowed  here,  and  share  in  the  assets.^' 

55— Section   50,  chapter  3,   "Ad-        56—108  111.  128. 
ministration  of  Estates."     Starr  &        57 — Branch   v.   Rankin,   108   111. 
Curtis  Annotated   Statutes  of  lUi-    445. 
nois,  Vol.  1,  p.  289;   Kurd's  R.  S. 
of  111.,  1905,  p.  113. 


CHAPTER   XXI 

GRANTING  LETTERS  OF  ADMINISTRATION- 
APPOINTMENT 


Sec. 

il4.  Granting  of  letters  of  admin- 
istration, who  appointed. 

il5.  Miscellaneous  application  of 
statute. 

416.  Administrator's  powers. 

417.  Administrator      or      executor 

not  authorized  by  will  can- 
not loan  funds  of  estate. 

418.  Executors    or    administrators 

have  no  power  to  mortgage 
lands. 

419.  When  letters  may  be  granted 

to  other  than  husband. 

420.  Affidavit  of  death. 

421.  Form   of   letters   of   adminis- 

tration. 

422.  Administrator's  oath. 

423.  Bond  of  administrator. 

424.  Failure     to     file     additional 

bond,  effect,  dual  officer. 

425.  Joint  or  several  bonds. 

426.  Suit  on  bond. 

427.  Miscellaneous  rights  and  rem- 

edies under  suit  on  bond. 

428.  The     rule      of     construction 

placed  upon  bonds. 

429.  Defense  of  surety  on  bond. 


Sec. 

430.  Revoking     letters,     removing 

executor  or  administrator. 

431.  For  false  pretense. 

432.  Revoked  when  will  produced, 

and  when  set  aside. 

433.  Revoked    for   lunacy,   disabil- 

ity, mismanagement,  etc. 

434.  Removal      of      representative 

from  state. 

435.  Further    security,    failure    to 

give. 

436.  Counter  or  other  security. 

437.  New  bond  form. 

438.  Surety    desiring    release   dur- 

ing administration, 

439.  Failure  of  executor  or  admin- 

istrator to  comply,  removed. 

440.  Death    of    sole   administrator 

or  executor. 

441.  Revocation  or  death  of  part. 

442.  Liability  after  revocation. 

443.  Resignation    of    executor    or 

administrator,  settlement. 

444.  Costs. 

445.  Foreign  executors   or   admin- 

istrators, power  to  sue. 

446.  Exception  when  letters  grant- 

ed here. 


Sec.  414,  Granting  letters  of  administration — who  to  be  ap- 
pointed administrator— death  to  be  proved.  "Administration 
of  the  estate  of  all  persons  dying  intestate  shall  be  granted  to 
some  one  or  more  of  the  persons  hereinafter  mentioned  and  they 
are  respectively  entitled  to  preference  thereto  in  the  following 

341 


342  THE    LAW    OF    ESTATES. 

orders:  1st,  To  the  surviving  husband  or  wife  or  any  comptJ- 
tent  person  nominated  by  him  or  her.  2nd.  To  the  children 
or  any  competent  person  nominated  by  them.  3rd.  To  the 
father  or  any  competent  person  nominated  by  him.  4th.  To 
the  mother  or  any  competent  person  nominated  by  her.  5th. 
To  the  brothers  or  any  competent  person  nominated  by  them. 
6th.  To  the  sisters  or  any  competent  person  nominated  by  them. 
7th.  To  the  grandchildren  or  any  competent  person  nominated 
by  them.  8th.  To  the  next  of  kin  or  any  competent  person 
nominated  by  them.  9th.  To  the  public  administrator  oi-  to 
any  creditor  who  shall  apply  for  the  same.  Provided,  that  only 
such  persons  as  are  entitled  to  administer  under  this  act  shall 
have  the  right  to  nominate.  When  several  are  claiming  and  arei 
equally  entitled  to  administration,  the  court  may  grant  letters/ 
to  one  or  more  of  them,  preferring  relatives  of  the  whole  to 
those  of  half  blood.  Preference  and  the  right  to  nominate  under 
this  act  must  be  exercised  within  sixty  days  from  the  death  of 
the  intestate,  at  the  expiration  of  which  time  administration 
shall  be  granted  to  the  public  administrator.  In  all  cases  where 
the  intestate  is  a  non-resident,  and  in  all  cases  where  there  is 
no  widow,  husband  or  next  of  kin  entitled  to  a  distributive  share 
in  the  estate  of  such  intestate,  who  at  the  time  of  the  death  of 
said  decedent  is  a  bona  fide  resident  of  this  State,  administra- 
tion shall  be  granted  to  the  public  administrator;  and  in  all 
cases  where  any  contest  shall  arise  between  the  widow,  heirs  at 
law  or  next  of  kin,  of  the  decedent  in  relation  to  the  grant  of 
letters,  and  it  shall  appear  to  the  court  that  the  estate  of  said 
decedent  is  liable  to  waste,  loss  or  embezzlement  administration 
to  collect  shall  be  granted  to  the  public  administrator  of  the 
proper  county  to  administer  such  estate  until  said  contest  is 
determined.  No  administration  shall  in  any  case  be  granted 
until  satisfactory  proof  shall  be  made  to  the  county  court  to 
whom  application  for  that  purpose  is  made  that  the  person  in 
whose  estate  letters  of  administration  are  requested  is  dead  and 
died  intestate.  Provided,  that  when  the  heirs  are  residents  of 
this  State  and  the  .estate  is  solvent  and  without  minor  heirs 


GRANTING  LETTERS  OF  ADMINISTRATION.  343 

and  it  is  desired  by  the  parties  in  interest  to  settle  the  estate 
without  administration  this  law  shall  not  apply.  And,  further, 
provided,  that  no  non-resident  of  this  State  shall  be  appointed 
or  act  as  administrator  or  executor.  "^ 

415.  Miscellaneous  applications  of  statute  and  powers  of 
administrator.  The  word  "or"  in  sentence  of  statute,  begin- 
ning: "In  all  cases  where  the  intestate  is  a  non-resident  or 
without  a  widow,"  means  "and."^  Illegitimate  child  has  no 
right  to  administer  on  estate  of  father.^  Powers  of  administra- 
tor under  valid  appointment  relate  back  to  date  of  decedent's 
death.^  Proper  place  for  principal  administration  of  estate  of 
deceased  person  is  his  domicile  at  time  of  death;  but  adminis- 
tration may  be  taken  out  in  any  place  in  which  decedent  leaves 
personal  property.^  Administration  may  be  granted  in  Illinois, 
upon  property  of  deceased  non-resident  which  was  within  such 
State  at  date  of  decedent's  death.  And  a  husband  residing  in 
Illinois,  has  a  right  to  administer  on  property  of  deceased  wife 
which  was  within  Illinois  at  date  of  her  death ;  and,  this,  though 
such  wife  died  domiciled  in  another  State.^  A  probate  court 
may,  in  its  discretion,  grant  administration  limited  to  a  single 
object.'^  "Within  meaning  of  the  statute  cited,  a  "creditor"  is 
one  to  whom  a  sum  is  due  to  be  paid  out  of  the  estate  of  a  de- 
cedent after  allowance  of  all  just  credits.^  The  chief  object  of 
ancillary  administration,  is  to  protect  local  creditors.^     No  suc- 

1 — As  amended  by  an  act  en-  v.  Gerisch,  163  111.  625,  631;  Make- 
titled  an  act  to  amend  section  18  peace  v.  Moore,  5  Gilm.  (111.)  474; 
of  an  act  entitled  "An  act  in  re-  Wells  v.  Miller,  45  111.  382;  7  Am. 
gard  to  the  administration  of  es-  &  Eng.  Ency.  of  Law,  194,  and 
tates."  Approved  April  1,  1872.  cases  cited  in  note  1. 
In  force  July  1,  1872,  amended  5— Wilkins  v.  Ellett,  108  U.  S. 
and   approved    May   12,   1905.     In  256. 

force  July  1,  1905.     Kurd's  R.   S.  6— N.  E.  Ins.  Co.  v.  Woodworth, 

of  111.,  1905,  p.  107.  Ill  U.   S.  138. 

2 — Rosenthal    v.    Trussing,    108  7— McArthur  v.  Scott,  113  U.  S. 

111.  128.  399. 

3— Myatt  v.  Myatt,  44  111.  473.  8— Estate    of    John    Wilson,    80 

4— McClune    v.    People.    19     111.  111.  App.  218. 

App.  105;  Globe  Accident  Ins.  Co.  9 — Ramsey    v.    Ramsey,    97    111. 

App.  277. 


344  THE    LAW    OF    ESTATES. 

eessful  collateral  attack  can  be  made  upon  the  order  of  the 
probate  court  appointing  an  administrator;  such  collateral  at- 
tack can  be  made  only  when  it  goes  to  the  jurisdiction  of  the 
court  direct.^*' 

416.  Administrator's  powers.  He  may  prosecute  and  defend 
suits,  and  may  enforce  judgments  and  decrees.^ ^  And  such 
administrator  has  discretionary  power,  and  in  certain  cases  it 
may  amount  to  a  duty,  to  redeem  realty  from  mortgage  debt 
under  sale  or  other  judgment  liens.^^  Personal  property  de- 
scends to  heirs,  but  must  pass  through  due  administration  under 
the  directions  of  the  proper  court.^^  Administrator  has  no  right 
over  decedent's  realty  except  to  sell  it  to  pay  debts,  and  then 
only  under  the  proper  order  of  court.^* 

417.  An  administrator  or  executor  not  authorized  by  will 
cannot  loan  funds  of  estate.  In  Wadsworth  v.  Connell  the  facts 
of  record  are  substantially  as  follows :  The  testator 's  estate  con- 
sisting principally  of  real  estate,  the  executor  was  required  by 
the  will,  to  sell  it  at  such  time,  and  on  such  terms,  as  might  be 
advantageous.  He  was  directed  to  invest  one-third  of  the  pro- 
ceeds of  sale  for  the  benefit  of  the  widow  during  her  natural  life, 
"with  as  little  delay  as  possible,  on  safe  securities."    The  execu- 

10 — Solomon  v.  People,  191  111.  same  section  and  chapter,  p.  1258. 
295;     Frothingham  v.     Petty,  197         12 — Section      18,      chapter      77, 

111.  429.  "Judgments   and    Decrees;"    Starr 

11 — Section    10,  chapter    1,    en-  &    Curtis    Annotated    Statutes    of 

titled      "Abatement."        Starr      &  Illinois,  with  Jones  &  Addington's 

Curtis  Annotated  Statutes  of  Illi-  Supplements   thereto,    Vol.    2,    pp. 

nois,    with    Jones    &    Addington's  2353  to  2358,  and  cases  cited;  Vol. 

Supplements    thereto.   Vol.    1,    pp.  4,  p.  753,  and  cases  cited;   Vol.  5, 

254,  255,  and  cases  cited;   Vol.  4,  p.  333,  and  cases  cited;   Kurd's  R. 

p.  27,  and  cases  cited;    Kurd's  R.  S.   of  111.,   1905,  same  section  and 

S.  of  111.,  1905,   same  section  and  chapter,    p.    1255.      See    also    Mc- 

chapter,    p.   89.     See   also    section  Creedy  v.  Mier,  64  111.  495. 
37,   chapter   77,   entitled    "Decrees         13 — Leamon  v.  McCubbin,  82  111. 

and   Judgments."     Starr  &  Curtis  263. 

Annotated     Statutes     of     Illinois,         14— Stone  v.  Wood,  16  111.  177; 

2nd  ed.,  Vol.  2,  p.  2370,  and  cases  Walbridge  v.  Day,  31  111.  379. 
cited;    Kurd's  R.    S.    of  111.,   1905, 


GRANTING  LETTERS  OF  ADMINISTRATION.  345 

tor  was  also  named  in  the  will  as  guardian  but  never  qualified  as 
such,  but  did  qualify  as  executor.  He  took  charge  of,  and  sold, 
the  property,  and  made  report  annually  to  the  probate  court; 
kept  the  money  invested  at  the  highest  rate  of  interest,  and  lost 
but  two  loans  of  $500  each.  Divers  sums  of  money  were  paid  to 
him  as  executor  as  appears  in  the  account  rendered  to  which 
exceptions  were  filed  and  under  which  is  shown  the  investments 
made  upon  which  the  court  passes.  It  is  said,  page  376 :  "  it  was 
as  executor,  and  not  as  guardian,  that  he  received  the  money, 
and  he  so  holds  it,  as  it  was  never  paid  over  to  a  guardian,  and 
he  never  became  such.  The  statute  has  not  conferred  on  execu- 
tors or  administrators  power  to  loan  the  funds  of  the  estate,  nor 
was  there  any  such  power  conferred  by  the  will.  It  then  fol- 
lows, that  appellant  made  these  loans  without  legal  authority, 
and  of  his  own  wrong.  "^^  In  the  case  of  Gilbert  v.  Guptill,^^ 
it  was  held;  where  a  guardian  failing  to  conform  his  acts  to  the 
statute,  and  loaning  money  contrary  to  the  requirements  of  the 
statute,  does  so  at  his  own  risk,  and  in  case  of  loss  he  is  liable 
to  make  it  good;  and  the  same  principle  applies  to  all  persons 
intrusted  by  the  statute  with  the  custody  of  the  money  of  others. 
Their   safety   consists   in   an   adherence   to  legal   requirements. 


15 — Wadsworth    v.      McConnell,  merely  directory.     The  court  fur- 

104  111.  369.  ther    holding   under   the   facts    in 

16 — 34  111.  112.  See  also  Mc-  that  case,  the  adding  of  another 
Intyre  v.  People,  103  111.  142.  name  as  security  in  the  body  of 
Where  a  guardian  loaned  his  the  guardian's  bond,  and  the  sign- 
ward's  money:  The  court  holding  ing  and  sealing  of  such  bond  by 
in  that  case,  the  statute  requires,  the  new  surety,  under  an  order  of 
the  county  court  must  approve  the  cou,rt  requiring  additional  secu- 
security;  and  in  such  case  where  rity,  even  if  lawful,  will  not  affect 
the  loan  was  made  without  the  ap-  the  security  of  the  ward  in  the 
proval  of  the  court  it  was  held,  the  bond  as  originally  made,  or  de- 
ward  might  treat  such  loan  made,  feat  a  recovery  thereon;  and  if 
as  an  appropriation  of  the  money  lawfully  made,  the  ward  may 
to  the  guardian's  own  use.  The  treat  the  bond  as  that  of  all  the 
statutory  requirement  "that  the  se-  sureties  named  in  it  after  its  al- 
curity  shall  be  approved  by  the  teration,  and  may  sue  any  one  of 
court"   being  mandatory   and   not  such  sureties  separately. 


346  THE    LAW    OF   ESTATES. 

The  administrator  is  not  authorized  to  loan  funds  of  the  estate; 
and  if  he  does  in  case  of  loss  he  is  liable  therefor.*'^ 

418.  Executors  and  administrators  have  no  power  to  mort- 
gage lands  of  the  estate.  In  the  case  of  Johnson  v.  Davidson,^^ 
quoting  from  page  235 :  ' '  The  argument  on  behalf  of  appellants 
seems  to  proceed  upon  the  supposition  that  an  administrator 
may  bind  the  heirs  by  his  mortgage  of  real  estate  for  the  purpose 
of  raising  money  with  which  to  pay  the  debts  of  the  ancestor, 
and  that  a  court  of  equity  will  sustain  the  mortgage,  or  a  title 
derived  under  it,  if  it  be  shown  that  the  borrowed  money  was 
honestly  applied  to  the  payment  of  debts.  No  authority  is  cited 
in  support  of  this  position,  and  none,  we  believe,  can  be  found. ' ' 

419.  When  letters  may  be  granted  to  other  than  husband, 
etc.  "Letters  of  administration  upon  the  goods  and  chattels, 
rights  and  credits  of  a  person  dying  intestate,  shall  not  be 
granted  to  any  person  not  entitled  to  the  same,  as  husband, 
widow,  next  of  kin,  creditor  or  public  administrator,  within 
seventy-five  days  after  the  death  of  the  intestate,  without  satis- 
factory evidence  that  the  persons  having  the  preference  have 
relinquished  their  prior  right  thereto;  but  if  application  is 
made  after  the  expiration  of  seventy-five  days,  the  county  court 
may  proceed  to  grant  letters  to  the  applicant  or  any  other  per- 
son, as  he  may  think  fit.  "^^ 

17 — Caruthers    v.    Caruthers,    99  nois,  Vol.  1,  p.  278;   Kurd's  R.  S. 

111.  App.  404.  of     111.,    1905,    same    section    and 

18—162  111.  232.  In  the  case  of  chapter,  p.  108. 
Johnson  v.  Davidson,  it  was  also  Owing  to  an  act  amending  sec- 
held:  A  court  of  equity  will  not  tion  IS,  chapter  3,  "Administra- 
sustain  a  title  derived  under  a  tion  of  Estates"  (ante  409)  the 
mortgage  made  by  an  administra-  time  is  now  limited  to  60  days  in- 
tor  to  raise  money  to  pay  debts  of  stead  of  75  after  death  in  which 
the  estate,  even  though  the  money  the  right  of  the  public  adminis- 
borrowed  is  honestly  applied  to  trator  or  creditor  to  take  out  let- 
the  payment  of  such  debts.  ters  of  administration  may  be  ex- 

19 — Section   19,  chapter   3,  "Ad-  ercised.       Therefore    the    amenda- 

ministration  of  Estates."     Starr  &  tory  act  as  noted  passed  May  12, 

Curtis  Annotated  Statutes   of  Illi-  1905,    by    implication    repeals   sec- 


GRANTING  LETTERS  OF  ADMINISTRATION.  347 

420.  AflSdavit  of  death.  Section  20  of  the  administration  act 
is  as  follows:  ''Before  letters  of  administration  shall  hereafter 
be  issued,  the  person  applying  for  the  same,  or  some  other 
credible  person,  shall  make  and  file  an  affidavit  with  the  proper 
clerk,  setting  forth,  as  near  as  may  be,  the  date  of  the  death  of 
the  deceased,  the  probable  amount  or  value  of  the  personal 
estate,  and  the  names  of  the  heirs  and  widow,  or  surviving  hus- 
band, if  known.  "20 

421.  Form  of  letters  of  administration.  Section  21  of  the 
administration  act  prescribes  the  form  of  letters  and  concludes 
after  giving  such  form  as  follows:  "And  in  all  cases  where 
letters  of  administration  with  the  will  annexed,  letters  of  admin- 
istration de  bonis  non,  or  letters  of  administration  to  any  public 
administrator  are  issued,  the  same  shall  be  in  conformity  with 
the  foregoing  form,  as  nearly  as  may  be,  taking  care  to  make 
the  necessarj^  variations,  additions  or  omissions  to  suit  each 
particular  case."2i 

422.  Administrator's  oath.  Section  22  of  the  administration 
act  is  as  follows:  "The  county  court  shall,  in  all  cases,  upon 
granting  administration  of  the  goods  and  chattels,  rights  and 
credits  of  any  person  having  died  intestate,  require  the  ad- 
ministrator (public  administrators  excepted)  to  take  and  sub- 
scribe and  file  with  the  clerk  of  the  court  an  oath,  in  substance 
(given  by  statute). -^ 

tion  19,  of  the  same  chapter,  in  so  nois.  Vol.  1,  pp.  278,  279;    Kurd's 

far  as  that  act  is  in  conflict  with  R.    S.    of   111.,    1905,    same   section 

section  18  noted.  and  chapter,  p.   108.     See  also  N. 

20— Laws  of  1859,  p.  95,  sec.  9:  E.   Ins.  Co.  v.   Woodworth,  111   U. 

Section    20,    chapter    3,    "Adminis-  S.  138.  In  that  case  it  is  held,  that 

tration  of  Estates."     Starr  &  Cur-  a  person  disputing  the  validity  of 

tis  Annotated  Statutes  of  Illinois,  letters  regular  on  their  face,   has 

Vol.  1,  p.  278;  Kurd's  R.  S.  of  111.,  the    burden    of    proof    in    showing 

1905,  same  section  and  chapter,  p.  the  invalidity  thereof. 

108.  22— R.    S.   of    1845,   p.    550;    sec. 

21— R.    S.    of    1845,    p.    550,    sec.  67;   Section  22,  chapter  3,  "Admin- 

€6;  section  21,  chapter  3,  "Admin-  istration     of    Estates."       Starr    & 

istration     of     Estates."     Starr     &  Curtis  Annotated   Statutes  of  Illi- 

Curtis  Annotated  Statutes  of  Illi-  nois.  Vol.  1,  p.  279;   Kurd's  R.  S. 


348  THE    LAW    OF    ESTATES. 

423.  Bond  of  administrator.  Section  23  of  the  administra- 
tion act  as  amended  May  13,  1903,  is  as  follows:  "Every 
administrator,  except  as  is  hereinbefore  in  section  eight  (8) 
provided,  shall,  before  entering  upon  the  duties  of  his  office, 
enter  into  a  bond,  with  good  and  sufficient  security,  to  be 
approved  by  the  county  court,  and  in  counties  having  a  pro- 
bate court,  by  the  probate  court,  in  a  sum  double  the  value  of 
the  personal  estate,  and  payable  to  the  People  of  the  State  of 
Illinois,  for  the  use  of  parties  interested,  substantially  in  the 
following  form  (form  given).  Which  said  bond  shall  be  signed 
and  sealed  by  the  said  administrator  and  his  securities,  attested 
by  the  clerk  of  the  county  court,  or  probate  court,  or  any  per- 
son in  the  county  authorized  to  administer  oaths,  and  filed  in 
said  clerk's  office,  and  that  where  it  becomes  necessary  to  sell 
the  real  estate  of  any  intestate  for  the  payment  of  debts  against 
his  estate  under  the  provisions  of  this  act,  the  court  shall  re- 
quire the  administrator  to  give  further  and  additional  bond, 
with  good  and  sufficient  security,  to  be  approved  by  the  court, 
in  a  sum  double  the  value  of  the  real  estate  of  the  decedent, 
sought  to  be  sold,  and  payable  to  the  People  of  the  State  of 
Illinois  for  the  use  of  the  parties  interested  in  the  form  above 
prescribed;  and  in  all  cases  where  bonds  shall  be  taken  from 
any  administrator  de  bonis  non  or  in  any  other  case  where  a 
form  shall  not  be  prescribed  in  this  act,  the  same  shall  be 
made  as  nearly  as  may  be,  in  conformity  with  the  form  above 
prescribed,  with  corresponding  variations  to  suit  each  particu- 
lar case.  "23 

424.  Failure  to  file  additional  bond — effect — de  facto  oflScer 
taking  bond — dual  officer — administrator  and  guardian  of  sole 
distributee.     The  failure  of  the  court  to  require  by  its  order, 

of  111.,  1905,  same  section  and  ton's  Supplements  thereto,  Vol.  1, 
chapter,  p.  108.  pp.  279,  280;  Vol.  5,  pp.  16,  17,  and 
23 — Laws  of  1903,  p.  1.  In  force  cases  cited  under  section  of  stat- 
July  1,  1903:  Section  23,  chapter  ute  in  question  in  each  volume; 
3,  "Administration  of  Estates."  Kurd's  R.  S.  of  111.,  1905,  same  sec- 
Starr  &  Curtis  Annotated  Statutes  tion  and  chapter,  pp.  108,  109. 
of  Illinois,  with  Jones  &  Adding- 


GRANTING  LETTERS  OF  ADMINISTRATION.  349 

and  also,  the  failure  of  the  administrator  de  bonis  non  to  give 
additional  bond  required  by  statute  where  real  estate  is  sold, 
does  not  affect  the  validity  of  the  sale.  The  rights  of  purchas- 
ers in  such  proceeding  will  be  protected  in  a  collateral  proceed- 
ing, against  mere  errors  which  may  have  intervened.  Particu- 
larly is  this  the  settled  doctrine  of  the  courts  of  Illinois,  where 
the  proceeds  of  an  estate  have  all  been  accounted  for,  and 
where  the  property  sold  at  administrator's  sale  has  vested  in 
good  faith  in  persons  not  parties  to  the  record,  and  who  obtain 
land  so  sold  by  mesne  conveyances  from  the  purchaser  at 
administrator's  sale;  and  who  for  a  number  of  years  have  been 
in  quiet  and  peaceable  possession  and  expended  considerable 
sums  in  improvement  of  the  property.^^  A  bond  taken  by  an 
officer  de  facto  is  valid.-^  In  the  case  of  Bell  v.  People  the 
facts  of  record  are  substantially:  The  same  person  was  ad- 
ministrator and  guardian  of  the  sole  heir  of  the. estate  of  which 
he  was  administrator.  No  report  was  made  by  such  dual  officer 
of  his  acts  and  doings  either  as  administrator  or  as  guardian 
of  the  heir.     He  was  in  fact  and  therefore  sustained  the  dual 

24 — Frothingham    v.    Petty,    197  refunding     bond,     and     therefore, 

111.  431.  after   the   death   of  such  adminis- 

25 — 94  111.  230.  And  see  also  trator  and  executor,  the  sureties 
supporting  the  opinion  in  Bell  v.  on  his  bond  as  administrator,  will 
People,  supra,  Karr  v.  Karr,  6  not  be  liable  for  such  money  so  re- 
Dana,  4;  Watkins  v.  Shaw,  2  G.  ceived  by  him  as  executor.  And 
&  J.  (Md.)  220;  Carroll  v.  Bos-  it  is  also  held,  that  after  the  death 
ley,  6  Yeager,  220;  Taylor  v.  De-  of  such  administrator  and  execu- 
blois,  4  Mason,  131;  Pratt  v.  tor,  and  the  appointment  of  an 
Northam,  5  Mason,  95;  Weir  v.  administrator  de  bonis  non  of  the 
The  People,  78  111.  192.  In  the  estate  of  which  he  was  executor, 
latter  case,  where  the  administra-  it  is  not  in  the  power  of  the  ad- 
tor  of  an  estate  also  qualified  as  ministrator  de  bonis  non,  by  set- 
executor  of  the  will  of  the  sole  tling  with  the  sureties  on  the  ex- 
heir  and  distributee  of  his  intes-  ecutor's  bond,  to  affect  the  rights 
tate  estate,  it  was  held  the  re-  of  the  surety  on  the  bond  of  the 
ceipt  of  money  by  him  as  admin-  same  person,  as  administrator,  and 
istrator,  after  the  debts  of  the  in-  thereby  charge  the  liability  that 
testate  are  paid,  will  be  regarded  rested  upon  the  sureties  in  the 
as  paid  to  himself,  as  executor,  bond  of  the  deceased  party  as  ex- 
wlthout  any  order  of  court  for  ecutor,  to  the  surety  on  his  bond 
that  purpose,  or  the  giving  of  any  as  administrator. 


350  THE    LAW    OF   ESTATES. 

relation  or  trust  of  administrator  and  guardian  of  the  sole  dis- 
tributee. In  the  ease  cited  suit  was  brought  against  the  sure- 
ties on  both  official  bonds,  and  the  lower  court  entered  judg- 
ment against  sureties  on  the  administrator's  and  guardian's 
bonds.  It  appeared  also  by  the  record  that  all  debts  against 
the  estate  were  fully  paid,  and  the  personalty  reduced  to  the 
possession  of  the  dual  officer.  While  matters  regarding  the 
estate  were  in  that  shape  the  officer  holding  as  such  adminis- 
trator and  guardian  died,  having  on  hand  funds  aggregating 
nearly  $6,000  belonging  to  said  estate,  and  held  for  the  benefit 
of  his  ward  and  sole  distributee.  The  court  under  the  state  of 
facts  shown  in  that  case,  held:  That  it  will  be  presumed  after 
a  reasonable  time  for  settling  the  estate  had  elapsed,  and  es- 
pecially after  the  administration  of  the  estate  has  been  com- 
pleted, and  that  he  held  such  funds  as  guardian,  his  sureties 
as  guardian  alone  will  be  liable  for  the  same.  That  an  order 
of  the  county  court  transferring  the  funds  in  his  hands  as 
administrator  is  not  indispensable  in  such  case  to  charge  his 
sureties  as  guardian. 

425.  Joint  or  several  bonds.  Section  24  of  the  Administra- 
tion act  is  as  follows:  "When  two  or  more  persons  are  ap- 
pointed executors  or  administrators  of  the  same  estate,  the  court 
may  take  a  separate  bond,  with  sureties,  from  each,  or  a  joint 
bond,  with  sureties,  from  all.  "^^ 


2G— Section  24,  chapter  3,  "Ad-  tion  1,  Chapter  131,  entitled  "Con- 
ministration  of  Estates."  Starr  &  struction  of  Statutes"  where  it  is 
Curtis  Annotated  Statutes  of  Illi-  provided,  that  the  signature  of  any 
nois,  Vol.  1,  p.  280;  Kurd's  R.  S.  person  to  a  public  bond  must  be 
of  111.,  1905,  same  section  and  in  the  proper  hand  writing  of  the 
chapter,  p.  109.  See  also  sections  person  signing,  or,  if  he  is  unable 
1,  4,  chapter  103,  entitled  "Official  to  write,  his  proper  mark.  Vol.  3, 
Bonds"  Starr  &  Curtis  Annotated  Starr  &  Curtis  Annotated  Statutes 
Statutes  of  Illinois,  Vol.  2,  pp.  of  Illinois,  page  3836;  Kurd's  R. 
2831,  2832;  Kurd's  R.  S.  of  111.,  S.  of  111.,  1905,  p.  1947;  see  People 
1905,  same  section  and  chapter,  v.  Robinson,  89  111.  103;  Boice  v. 
pp.  1417,  1418.  See  clause  15,  sec-  Gilbert,  29  111.  527;  Stern  v.  Peo- 
ple, 102  111.  540. 


GRANTING  LETTERS  OF  ADMINISTRATION.  351 

426.  Suit  on  bond.  Section  25  of  Administration  Act  is  as 
follows:  "All  bonds  which  may  at  any  time  be  given  by  any 
executor  or  administrator,  either  with  or  without  the  will 
annexed,  or  de  bonis  non,  to  collect,  or  public  administrator, 
may  be  put  in  suit  and  prosecuted  against  all  or  any  one  or 
more  of  the  obligors  named  therein,  in  the  name  of  the  People 
of  the  State  of  Illinois,  for  the  use  of  any  person  who  may  have 
been  injured  by  reason  of  the  neglect  or  improper  conduct  of 
any  such  executor  or  administrator,  and  such  bonds  shall  not 
become  void  on  the  first  recovery  thereon,  but  may  be  sued 
upon,  from  time  to  time,  until  the  whole  penalty  shall  be  re- 
covered: Provided,  that  the  person  for  whose  use  the  same  is 
prosecuted,  shall  be  liable  for  all  costs  which  may  accrue  in 
the  prosecution  of  the  same,  in  case  the  plaintiffs  fail  in  their 
suit;  and  certified  copies  of  all  such  bonds,  under  the  seal  of 
the  clerk  of  the  county  court,  shall  be  received  as  evidence  to 
authorize  such  recovery  in  any  court  of  law  or  equity  of  com- 
petent jurisdiction,  "2"  This  statute  construed  in  People  v. 
Lott,^^  is  held  to  refer  to  actions  at  law,  and  not  to  authorize 
bill  in  equity.  In  suits  on  bonds  the  People  as  plaintiffs  may 
sue  for  use  of  several  plaintiffs  for  all  damages  sustained.^*^     A 

27— Section   23,  Chapter  3,  "Ad-  28—27  111.  215. 

ministration  of  Estates."     Starr  &  29 — People  v.  Stacey,  6  III.  App. 

Curtis   Annotated   Statutes   of   111-  521';  People  v.  Hunter,  89  111.  392; 

inois,    with    Jones    &   Addington's  Ralston  v.  Wood,  15  III.  159;   Peo- 

Supplements    thereto.    Vol.    1,    p.  pie  v.  Randolph,  24   111.  324;    Peo- 

280,  and  cases  cited;  Vol.  4,  p.  33,  pie  v.  Summers,  16  111.  173;  People 

and  cases  cited;  Vol.  5,  p.  17,  and  v.  Lane,   36  111.   App.   649;    Nevitt 

cases  cited;    Kurd's  R.   S.   of  111.,  v.  Woodburn,  160  711.  214;   People 

1905,  same  section  and  chapter,  p.  v.     Solomon,  89     111.     App.     386; 

109.      See   also    sections    125,    128,  Same  v.  Same,  191  III.  290.  In  the 

"Administration     Act"     Starr     &  case     of     Nevitt     v.     Woodburn, 

Curtis    Statutes,    Vol.    1,    p.    347;  supra,  p.  209,  this  general  rule  is 

Kurd's  R.  S.  of  1905,  p.  126.     See  stated   and   applied.     "Sureties  on 

also   sections    4,    13,    chapter    103,  official  bonds  are  not  concluded  by 

"Official    Bonds,"    Starr    &    Curtis  a  decree  or  judgment  against  their 

Annotated     Statutes     of     Illinois,  principal,   unless   they    have     had 

Vol.   2,  pp.  2832,  2835;   Kurd's  R.  their   day   in   court   or   an    oppor- 

S.  of  111.  1905,  pp.  1417,  1419;  R.  S.  tunity    to    be   heard    in    their    de- 

of  111.,  1845,  p.  551,  sec.  59.  fense;    but    administration    bonds 


352  THE    LAW    OF   ESTATES. 

debt  may  be  maintained  on  bond  by  creditor  holding  judg- 
ment against  administrator,  although  such  judgment  was  never 
presented  or  allowed  by  the  probate  court.^*^ 

427.  Miscellaneous  rights  and  remedies  arising  under  suit 
on  bond  or  mal-administration.  Administrator 's  failure  to  com- 
ply with  order  of  court  is  cause  for  action  on  bond.^^  But 
an  erroneous  order  of  the  probate  court  for  sale  of  realty  not 
in  conformity  to  statute,  will  not  make  sureties  on  administra- 
tor's bond  liable  for  moneys  coming  to  the  hands  of  adminis- 
trator under  such  sale.^^  The  measure  of  liability  is  fixed  by 
the  bond.^3  Inventory  does  not  bind  surety  as  to  what  prop- 
erty constitutes  assets  of  estate.^^  The  fact  that  one  of  the 
principals  to  the  bond  died  pending  the  appeal,  and  that  ap- 
pellee was  compelled  to  pursue  his  remedy  against  his  debtors 
separately,  one  in  person  and  the  other  through  the  Probate 
court,  does  not,  upon  proper  construction  of  the  bond,  release 
the  sureties.^^     Equity  will  relieve  against    mal-administration 

seem  to  form  an  exception  to  this  159;   Housh  v.  People,  66  111.  178; 

general     rule,     and     the     sureties  a  petition  filed  in  the  county  court 

thereon,    in    respect   of    their    lia-  was    the   basis    of  the    action   in 

bility  for  the  default  of  the  prin-  the   latter   case;    City   of   Chicago 

cipal,  seem  to  be  classed  with  such  v.    Gage,    95    111.    593;    Storall    v. 

as    covenant   that   their    principal  Banks,  10  Wall.  583.     See  for  the 

shall    do   a   particular   act."     The  form    of    declaration    in    suit    on 

following  cases  holding  under  this  bonds,  Curry  v.  People,  54  111.  263; 

rule,    the    liability    of    the    surety  People  v.  Miller,  1  Scam.  (111.)  83. 

upon    an    administration    bond    is  30 — People  v.  Allen,  6  111.  App. 

fixed  by  the  judgment  against  his  17. 

principal;   and  this  is  so  by  rea-  31 — Ralston    v.     Wood,     15     111. 

son  of  the  terms  of  his  obligation,  159;   Nevitt  v.  Woodburn,  16u  111. 

which    are   substantially   those  of  203-214;    Solomon    v.    People,    191 

the   bond,  resulting  from  the  na-  111.    96;    People   r.    Lane,    36    111. 

ture  of  the  obligation  entered  into  App.  649. 

by   the  surety   on   an   administra-  32 — Young  v.  People,  35  111.  App. 

tor's  or   executor's   bond   cited   in  363. 

support  of  this  doctrine,  1,  Woer-  33 — Solomon   v.   People,    89    111. 

ner's  Am.  Law  of  Administration,  App.  386;   Same  v.  Same,  191  111. 

sec.   255;    2,  Black  on  Judgments,  290. 

section   589;    Irwin  v.   Backus,   25  34— People  v.  Petrle,  191  111.497. 

Cal.  214;  Ralston  v.  Wood,  15  111.  35— Sanger    v.     Nadlehoffer,    34 

111.  App.  252. 


GRANTING  LETTERS  OF  ADMINISTRATION.  353 

of  estate  by  administrator,  complainants  will  not  be  driven  to 
suit  on  bond.^^  An  administrator  de  bonis  non  can  bring  and 
maintain  a  suit  against  former  executor  and  his  sureties  for 
indebtedness  of  that  executor  to  the  estate;  this  right  is  based 
upon  assets  recovered  or  collected  by  such  former  executor  and 
converted  to  his  own  use/''^  A  usee,  without  suing  upon  the 
bond,  may  have  claim  allowed  against  deceased  surety's  estate 
in  the  probate  court,  which  has  equitable  jurisdiction  in  such 
case  to  adjudicate  and  allow  such  claim  to  the  extent  of  the 
surety's  liability .^^ 

428.  The  rule  of  construction  placed  upon  bonds.     In  the 

case  of  Beloni  v.  FreehornP  it  is  said:  "In  construing  the 
obligations  of  sureties,  the  same  rules  are  applicable  as  in  the 
construction  of  other  instruments.  While  the  obligation  can 
not  be  extended  by  construction  or  implication  beyond  its 
precise  terms,  the  meaning  is  to  be  ascertained  in  the  same 
manner  as  in  other  instruments,  and  when  this  is  ascei^tained, 
effect  is  to  be  given  to  it."  A  fair  reasonably  strict  construc- 
tion of  securities  obligations  is  all  that  the  law  requires.^'^ 

429.  Defense  of  surety  under  bond.  Where  an  administra- 
tor of  an  estate  dies,  and  his  surety  on  his  bond  succeeds  him, 
and  he  is  sued  as  such  surety  on  the  bond,  he  will  be  liable 
only  for  the  acts  of  the  deceased  administrator,  and  not  for 

36 — McCreedy    v.    Meir,    64    111.  dence    showing    a   breach    of    the 

495.  conditions  of  the  bond  by  the  prin- 

37 — Nevitt     v.     Woodburn,     160  cipal    because    he    has    not    been 

111.  214.  served    with    process,    or    is    not 

38 — Thompson  v.  Block,  200  111.  within     the    jurisdiction     of     the 

465.  court,   or   because   his   defalcation 

39 — 63   N.   Y.   217.     Doctrine  or  has    not    been    established    by    a 

rule  laid   down   in   that  case  was  judgment  against  him.     The  obli- 

adopted  and  applied  in  Sanger  v.  gation   of  a  surety  on  such  bond 

Nadlehoffer,  34  111.  App.  252.  is  not  collateral,  but  a  direct  one. 

40 — Cassady      v.      Trustees      of  See  also  the  following  cases:  Mas- 
Schools,  105  111.  560.     In  this  case,  sie  v.  Eelford,  68  111.  290;  Walker 
it  is  held,  the  sureties  on  a  school  v.   Kimball,   22   111.   539;    McCarty 
treasurer's     bond,     in     an     action  v.  Hall,  24  111.  343. 
thereon,    can    not    object    to    evi- 
23 


354  THE    LAW    OF    ESTATES. 

moneys  that  came  into  his  hands  as  successor,^*  The  fact,  that 
the  inventory  mentioned  the  fund,  as  being  a  part  of  the  prop- 
erty of  the  estate,  has  been  held  not  to  create  a  liability  against 
the  sureties  upon  the  executor's  bond.^^  t^q  sureties  of  an 
executor  cannot  be  made  liable  for  funds,  which  the  executor 
received  as  agent  or  trustee  for  a  legatee,  though  he  has 
charged  himself  with  them  in  his  executorial  accounts."*^  The 
sureties  of  administrator  could  not  be  held  liable  for  funds  re- 
ceived, not  as  administrator,  but  as  agent  of  the  w^dow  and 
heirs,  though  he  charged  himself  with  such  funds  as  adminis- 
trator.-*"*  Sureties  are  not  liable  for  the  proceeds  of  an  intes- 
tate's real  estate,  though  charged  in  the  account  of  an  adminis- 
trator. This  applies  to  a  general  bond  only,  and  not  where 
additional  bond  is  required  in  the  sale  of  real  estate.^^  The 
sureties  upon  the  bond  of  an  administrator  who  has  collected 
moneys,  neither  assets  of  the  estate  nor  subject  to  distribution 
by  him,  and  to  which,  as  the  legal  representative  of  the  dece- 
dent, he  was  not  entitled,  are  not  liable  for  any  appropriation 
or  use  of  the  same  by  the  administrator  for  his  personal  bene- 
fit.'*^ The  fact,  therefore,  that  the  executors  here  saw  fit  to 
charge  themselves  in  their  general  account  with  the  balance 
remaining  after  payment  of  debts,  legacies  and  charges,  does 
not  conclude  the  sureties  under  the  general  bond.^'  The  liabil- 
ity of  a  surety  is  strictissimi  juris. ^^  The  report  of  an  execu- 
tor, showing  a  certain  balance  in  his  hands  as  of  the  date  of 

41— People  V,  Allen,  86  111.  166.  308.     In  this  case,  the  court  held 

42 — People     v.     Petrie,  191     111.  the  liability  on  the  bond  could  not 

497,  513.  be    extended    by    construction    be- 

43 — Clay  v.  Hart,  7  Dana,  (Ky.)  yond  the  precise  term  of  a  county 

1.  clerk,  which  fixed  the  terms  of  the 

44 — Shields    v.    Smith,    8    Bush,  contract  or  liability  of  the  surety. 

601.  The  surety  on  the  bond  being  only 

45 — Commonwealth  v.   Gilson,  8  liable    for    the    faithful    perform- 

Watt.  214.  ance  of  the  duties  of  the  clerk  for 

46 — Pace  v.  Pace,  19  Fla.  454.  whom  he   was  surety,   during  the 

47 — Robinson  v.  Millard,  133  definite  term  of  such  clerk's  office 
Mass.  236;  People  v.  Hoffman,  182  as  fixed  by  law.  The  statute  fix- 
Ill.  390.  ing  the  term  of  such  clerk,  which. 

48 — People  v.  Toomey,  122  111.  was  taken  as  a  part  of  the  con- 
tract. 


GRANTING  LETTERS  OF  ADMINISTRATION.  355 

his  report,  is  not  conclusive  on  his  sureties  in  an  action  to 
enforce  their  liability  on  the  bond,  when  the  report  wa^  not 
approved  by  an  adjudication  of  the  court.'*'*  That  sureties  on 
the  bond  of  executor,  who  collect  and  misappropriate  the  pro- 
ceeds of  a  benefit  certificate  "where  they  are  bequeathed  to  a 
person  named  by  will  in  trust  for  my  legal  heirs"  does  not 
create  a  liability  against  the  sureties  on  the  executor's  bond,  if 
they  are  not  otherwise  liable  under  the  law.^**  A  claim  against 
the  estate  of  a  surety  upon  an  executor's  bond  for  the  amount 
adjudged  to  be  due  may  be  allowed  in  the  name  of  the  usee, 
instead  of  in  the  name  of  the  People  for  his  use.*"'^  The  statute 
provides  that  all  bonds  given  by  any  executor  may  be  put  in 
suit  and  prosecuted  in  the  name  of  the  People  of  the  State  of 
Illinois,  for  the  use  of  the  person  injured  by  reason  of  the 
neglect  or  improper  conduct  of  the  executor,  and  in  an  action 
at  law  they  must  be  put  in  suit  in  that  manner.  The  right  of 
action  at  law  is  vested  solely  in  the  person  having  the  legal 
interest.  But  the  probate  court  can  grant  equitable  relief,  and 
can  secure  to  parties  the  right  allowed  to  them  by  law,  for  the 
purpose  of  arriving  at  an  adjustment  of  the  claim.  And  so 
the  usee  was  permitted  and  allowed  a  claim  against  the  estate 
in  question  for  the  amount  due  on  the  bond  where  the  deceased 
was  the  surety.'^- 

430.  Revoking  letters — ^removing  executor  or  administrator 
from  office.  The  statute  of  Illinois  provides  that  executors  or 
administrators  may  be  removed  and  letters  testamentary  or  of 
administration  may  be  revoked  for  the  following  causes,  viz. : 
For  false  and  fraudulent  pretense  under  which  letters  have 
been  granted.  Where  will,  testament  or  codicil  is  produced 
after  letters  have  been  granted;  or  where  will,  testament  or 
codicil  is  set  aside  by  due  course  of  law.     Where  executor  or 

49 — People      v.      Hoffman,      182  51 — Thomson   v.   Black,   200   III. 

111.  390;    People  v.  Petrie,  191  111.  465. 

497.  52— Thomson   v.   Black,    200   111. 

50— People    v.     Petrie,     191     111.  465,  467. 
497. 


356  THE    LAW    OF   ESTATES. 

administrator  shall  become  insane,  lunatic  or  of  unsound  mind, 
habitual  drunkard  or  convicted  of  infamous  crime,  or  shall 
waste  or  mismanage  the  estate,  or  by  their  conduct  endanger 
their  co-executors,  co-administrators  or  securities;  or,  where 
executor  or  administrator  is  about  to  remove,  or  has  removed 
beyond  the  limits  of  the  State,  the  county  court  or  probate 
court  may  under  the  strict  provisions  of  the  statute  remove 
such  from  office  and  revoke  letters  testamentary  or  of  adminis- 
tration theretofore  granted  to  such.^^ 

431.  For  false  pretense.  Section  26,  "County  courts  shall 
revoke  letters  of  administration  in  all  cases  where  the  sajne 
were  granted  to  any  person  upon  the  false  and  fraudulent  pre- 
tense of  being  a  creditor  of  the  estate  upon  which  administra- 
tion is  granted,  or  upon  any  other  false  pretense  whatsoever." 
Section  27:  "When  it  appears  that  such  letters  are  fraudu- 
lently obtained  by  such  administrator,  the  court  revoking  the 
same  shall  give  judgment  against  the  administrator  for  all  costs 
of  suit."^*  The  facts  of  record  in  Marston  v.  Wilcox^^  show: 
The  administrator  had  obtained  the  letters  of  administration 
by  fraudulently  representing  that  he  was  a  creditor  of  the 
intestate,  when  in  truth  he  was  not.  It  being  held  courts  of 
probate  have  power  to  revoke  letters  of  administration  ob- 
tained through  fraud.  The  right  to  inquire  whether  a  fraud 
has  been  practiced,  is  a  necessary  incident  to  the  power  given 
by  statute  "to  hear  and  determine  the  right  of  administra- 
tion." In  the  case  of  Wernse  v.  Hall,  Adm.^^  the  record  shows  the 
plaintiff  in  error  applied  to  the  probate  court  of  Ralls  county, 
Missouri,  to  have  his  claim  allowed;  that  court  rejected  the 
same  and  the  plaintiff  came  to  Illinois  and  on  a  void  judgment 

53 — See  sections  26  to  33,  inclu-  R.   S.   of   111.,   1905,   same  sections 

sive,    also    sections     36     and     114.  and  chapter,  pp.  109,  110,  124. 

Chapter  3,  "Administration  of  Es-  54 — Section   27,   chapter   3,   "Ad- 

tates,"    Starr   &   Curtis   Annotated  ministration   of   Estates,"   statutes 

Statutes  of  Illinois,  vol.  1,  pp.  281  cited  in  note  53,   with  same  page 

to  284  inclusive;  page  339  of  same  reference. 

volume  and  cases  cited  under  sec-  55 — 1  Scam.   (111.)   60. 

tions    of    statute     noted;     Kurd's  56—101    111     423. 


GRANTING  LETTERS  OF  ADMINISTRATION.  357 

of  the  Circuit  Court  of  St.  Louis  county,  Missouri,  made  rep- 
resentation to  the  probate  court  in  this  State,  that  he  was  a 
creditor  of  the  deceased  and  procured  letters  of  administration 
from  the  county  court  of  Madison  county,  this  State  on  such 
representation.  Held:  When  it  was  made  apparent  upon  the 
trial  that  plaintiff  in  error  was  not  a  creditor,  it  was  proper 
to  not  only  disallow  the  claim,  but  also  to  enter  an  order  re- 
voking the  letters  of  administration,  as  was  done  by  the  Illi- 
nois court. 

432.    Revoked  when  will  produced — and  when  will  set  aside. 

Section  28,  of  the  administration  act,  provides:  "If,  at  any 
time  after  letters  of  administration  have  been  granted,  a  will 
of  the  deceased  shall  be  produced,  and  probate  thereof  granted 
according  to  law,  such  letters  of  administration  shall  be  re- 
voked. ' '  Section  29 :  "In  all  cases  where  a  will,  testament  or 
codicil  shall  have  been  proved  and  letters  granted  thereon,  as 
aforesaid,  and  such  will  shall  thereafter  be  set  aside  by  due 
course  of  law,  the  letters  granted  thereon  shall  be  revoked."^''' 
In  the  case  of  Shephard  v.  RJiode^^  the  record  shows:  A  per- 
son died  in  the  State  of  Pennsylvania,  leaving  a  will,  and 
having  property  and  creditors  in  the  State  of  Illinois;  letters 
of  administration  were  granted  by  the  county  court  of  Cook 
county,  without  it  being  known  that  there  was  a  will;  but  on 
its  discovery  it  was  probated  and  recorded  in  Pennsylvania, 
and  in  Illinois,  the  letters  of  administration  first  issued  were 
revoked,  and  letters  with  the  will  annexed  were  granted.  Held, 
that  the  grant  of  the  first  letters  was  not  void,  but  voidable, 
and  the  acts  performed  by  the  first  administrator  are  binding 
in  a  collateral  proceeding.  Under  our  Statute  of  Wills  (Stat- 
utes of  1845),  sections  71,  72,  then  in  force,  substantially  the 
same  as  statutes  cited  under  administration  act,  it  was  held, 
that  upon  the  revocation  of  letters  of  administration  on  the 
discovery  and  probate  of  a  will,  the  various  acts  done  and  per- 

57 — Section  28,   chapter  3,  "Ad-     Illinois,  vol.  1,  p.   281;   Kurd's  R. 
ministration    of    Estates."      Starr     S.  of  111.,  1905,  p.  109. 
&    Curtis    Annotated    Statutes    of        58—60  111.  301. 


358  THE    LAW    OF   ESTATES. 

formed  under  the  first  grant  of  letters  are  binding  until  set 
aside  in  a  direct  proceeding/''^  Even  if  it  were  the  rule  of  the 
common  law  that  letters  of  administration  were  void  where  a 
will  was  in  existence  we  do  not  think,  in  view  of  our  statute, 
that  such  rule  obtains  in  this  State.  The  county  court  had 
cognizance  of  the  subject  matter;  the  proper  application  was 
made,  and  the  judgment  of  the  court  was  properly  exercised. 
The  grant  of  administration  was,  then,  made  by  a  court  of 
competent  jurisdiction.""  In  the  case  of  Meek  v.  Allison,^^ 
where  the  will  of  a  deceased  person,  offered  for  probate  was 
rejected,  and  there  being  no  appeal  taken,  the  county  court, 
upon  a  proper  application,  granted  letters  of  administration 
upon  the  estate,  under  which  the  administrator  paid  off  claims 
and  made  a  partial  distribution  of  the  estate  to  the  heirs; 
after  this  was  done  the  will  which  was  first  rejected,  was  again, 
fifteen  months  after,  presented  for  probate  after  protracted 
litigation  in  the  circuit  court  of  Peoria  county,  and  was  by 
the  county  court  admitted  to  probate.  The  court  say:  "The 
statute  clearly  never  intended  that  creditors  and  distributees 
should  be  compelled  to  wait  an  indefinite  time  for  the  executor 
or  legatees  to  prove  the  will.  Such  a  construction  of  the  statute 
would  postpone  for  twenty  years  any  administration  upon  an 
estate,  if  a  will  existed,  under  the  severe  penalty  resulting  from 
a  misapplication  of  the  assets  and  a  maladministration. " 
Held,  the  letters  of  administration  were  not  void,  but  only 
voidable,  and  not  being  void,  they  were  a  protection  to  the 
administrator  for  all  lawful  acts  done  by  him  under  them 
before  their  revocation. 

433.     Revoked  for  lunacy,  disability,  mismanagement,  etc. 

Section  30  of  the  administration  act  provides:  "The  county 
court  may  revoke  all  letters,  testamentary  or  of  administration, 
granted  to  persons  who  become  insane,  lunatic  or  of  unsound 
mind,  habitual   drunkards,   are   convicted  of  infamous   crimes, 

59— Shephard  v.  Rhodes,  111  111.         60— Shephard     v.     Rhodes.     Ill 
301;    2,   Kent's  Com.   413;   Wright    111.  301. 
V.  Walbaum,  39  111.  554.  61—67   111.   46. 


GRANTING  LETTERS  OF  ADMINISTRATION.  359 

waste  or  mismanage  the  estate,  or  who  conduct  themselves  in 
such  manner  as  to  endanger  their  co-executors,  co-administra- 
tors or  securities,  in  all  which  cases  the  court  shall  summon 
the  person  charged  to  be  in  default  or  disqualified,  as  afore- 
said, to  show  cause  why  such  revocation  should  not  be  made. 
When  revocation  is  made,  the  reason  therefor  shall  be  stated 
at  large  upon  the  record."*'-  Under  the  statute  quoted  and 
others  hereafter  referred  to,  the  removal  of  administrators, 
and  the  revocation  of  letters  to  such  by  legislative  enactment, 
was  placed  in  the  county  and  probate  courts  of  this  State.  It 
is  a  special  power  or  jurisdiction  conferred  upon  such  court 
when  they  act  strictly  within  the  power  conferred.  It  is  there- 
fore to  be  noted,  that  in  all  cases  under  section  30  the  court 
shall  summons  the  person  charged  to  be  in  default  or  dis- 
qualified, to  show  cause  why  such  revocation  should  not  be 
made;  and  when  revocation  is  made,  the  reason  therefor  shall 
be  stated  at  large  upon  the  record  of  the  court  in  such  proceed- 
ing. In  Hanifan  v.  Needles^^  it  is  held:  "It  is  a  funda- 
mental principle  that  underlies  our  whole  judicial  fabric,  that 
in  all  proceedings  in  courts  of  justice  wherein  it  is  sought  to 
deprive  the  citizen  of  his  property,  or  any  right  or  privilege 
recognized  by  law,  the  party  to  be  affected  by  them  is  entitled 
to  reasonable  notice  of  the  time  and  place  of  hearing,  and  of 
the  general  nature  or  object  of  such  proceedings.  In  con- 
formity to  this  general  principle  the  county  court  has  no  power 
or  jurisdiction  to  revoke  the  letters  of  an  executor  or  adminis- 
trator, under  the  above  section,  until  he  is  first  cited  to  appear 
and  show  cause  why  his  letters  should  not  be  revoked."  In 
Munroe  v.   The  People^'^  the  same  doctrine  is  announced  but 

62 — Section  30,  chapter  3,  "Ad-  day  of  the  next  term  of  the  county- 
ministration  of  Estates."  Starr  &  court,  "and  present  his  account  of 
Curtis  Annotated  Statutes  of  Illi-  said  estate  for  settlement,"  in 
nois,  Vol.  1,  p.  281;  Kurd's  R.  S.  which  there  is  no  intimation  that 
of  111.,  1905,  p.  109.  he  is  charged  with  waste  or  mis- 

C3 — 108  111.  403.     In  the  case  of  management,      etc.,      the      county 

Hanifan  v.  Needles,  it  is  held,  on  court    has    no    jurisdiction    to   re- 

a  citation  to  an   executor,   requir-  voke   his    letters   testamentary, 

ing   him    to   appear   on   the   first  64 — In    the   case   of  Munroe  v. 


360  THE    LAW    OF   ESTATES. 

put  in  different  form;  it  being  there  held:  The  county  court, 
in  the  absence  of  statutory  authority,  has  no  power  to  remove 
an  administrator,  or  to  revoke  letters  of  administration,  after 
the  administrator  has  accepted  and  qualified,  and  entered  upon 
his  duties.  And  until  some  one  of  the  causes  mentioned  in  the 
statute  is  placed  before  the  court  for  action,  the  court  has  no 
power  to  act  at  all,  or,  in  other  words,  has  no  jurisdiction. 

434.  Removal  of  representative  from  State.  Section  31  of 
the  administration  act  provides:  "When  it  shall  come  to  the 
knowledge  of  the  county  court,  by  affidavit  or  otherwise,  that 
any  executor  or  administrator  of  an  estate  is  about  to  remove 
or  has  removed  beyond  the  limits  of  this  State,  it  shall  be  the 
duty  of  such  court  to  cause  a  notice  to  be  published  in  some 
newspaper  in  the  county  where  letters  testamentary  or  of 
administration  were  granted,  for  four  weeks  successively,  and 
if  no  newspaper  is  published  in  said  county,  then  by  posting 
up  a  notice  at  the  court  house  door,  notifying  the  said  executor 
or  administrator  to  appear  before  him  within  thirty  days  after 
such  notice,  and  make  a  settlement  of  his  accounts,  as  re- 
quired by  law.  If  the  executor  or  administrator  neglects  or  re- 
fuses to  make  such  settlement,  it  shall  be  the  duty  of  said  county 
court  to  remove  him  from  office.^^  Until  some  one  of  the 
causes  mentioned  in  the  statute  is  placed  before  the  court  for 
action,  the  court  has  no  power  to  act  at  all  in  this  regard — it 
has  no  jurisdiction  to  act.^^  Where  the  records  show  facts 
which   confer   jurisdiction,   such   proceeding  will   be   upheld.^''^ 

The     People,     102     111.      406,      it  petition  filed  in  the  county  court 

is  held:    Until  a  valid  revocation  in  that  case  stated  in  the  opinion, 

of    letters    of    administration    al-  65 — Laws  of  1847,  p.  63,  rewrit- 

ready    granted    on    an     estate     is  ten  in  present  statute;   section  31, 

made,    the    county    court    has    no  chapter  3,  "Administration  of  Es- 

power    or   jurisdiction   to   appoint  tates,"     Starr  &  Curtis  Annotated 

another  as  administrator  de  bonis  Statutes  of  Illinois,  Vol.  1,  p.  282; 

non   of   the   same   estate,    and   an  Kurd's  R.  S.  of    111.,   1905,  p.  110.. 

order  for  such  appointment  under  66 — Munroe    v.    People,    102   lU. 

such    circumstances    is    absolutely  410. 

void.     See  also  facts  stated  in  the  67 — Frothingham    v.    Petty,    197 

111.  426. 


GRANTING  LETTERS  OF  ADMINISTRATION.  361 

Where  an  executor  removes  from  the  State  of  appointment  and 
under  a  bill  in  equity,  is  beyond  the  reach  of  the  process  of 
the  county  court,  and  the  payment  of  money  in  executrix's 
hands,  belonging  to  the  estate,  could  not  be  enforced  by  at- 
tachment for  contempt,  a  receiver  may  be  appointed  at  the 
instance  of  the  cestui  que  trust.^^ 

435.  Further  security — failure  to  give.  ''When  any 
court  grants  letters,  testamentary  or  of  administration,  of 
the  estate  of  any  person  deceased,  without  taking  good  security 
as  aforesaid,  or  when  any  security  heretofore  or  hereafter  taken 
becomes  insufficient,  the  court  may,  on  the  application  of  any 
person  entitled  to  distribution,  or  otherwise  interested  in  such 
estate,  require  such  executor  or  administrator  to  give  other 
and  sufficient  security;  and  in  default  thereof  the  letters,  tes- 
tamentary or  of  administration,  shall  be  revoked  and  adminis- 
tration de  bonis  nan  granted;  but  all  acts  done  according  to 
law  by  the  executor  or  administrator  so  removed  prior  to  such 
revocation,  shall  be  valid.  "^^  A  new  or  additional  bond,  given 
by  an  administrator  under  above  statute,  formerly  section  79 
of  the  statute  of  "Wills,"  can  not  operate  to  discharge  his 
sureties  in  the  original  bond.'^^  Where  a  second  or  additional 
bond  was  given,  and  before  then,  the  administrator  had  ap- 
propriated the  funds  of  the  estate  to  his  own  use;  the  sureties 
on  the  original  bond  were  held  liable  to  the  guardian  of  the 
heirs  for  such  portion  of  the  money  as  he  was  entitled  to  in 
that  capacity.  But  a  creditor,  or  other  person  interested  in  the 
estate,  has  his  election  to  sue,  if  the  maladministration  for 
which  the  suit  is  brought,  would  be  a  breach  of  both  the 
bonds. '^1 

68 — Etling     V.     First     National  R.    S.    of   111.,    1905,   same   section 

Bank,  173  111.  381.  and    chapter,    p.    Ill;    Munroe    v. 

69— R.  S.  of  1845,  p.  553,  section  People,  102  111.  406.     See  citations 

78,  rewritten;    section  32,  chapter  {Ante  430)   as  to  "Official  Bonds." 

3,     "Administration     of     Estates,"  70 — People  v.   Curry,    59   III.   35. 

Starr  &  Curtis  Annotated  Statutes  71 — Pinkstaff   v.    People,    59    111. 

of  Illinois,  Vol.  1,  p.  283;    Kurd's  148. 


362  THE    LAW   OF   ESTATES. 

436.  Counter  or  other  security.  Section  33  of  the  adminis- 
tration act  provides:  "When  a  surety  for  an  executor  or  ad- 
ministrator, or  his  representatives,  may  conceive  himself  or 
themselves  in  danger  of  suffering-  by  the  mismanagement  of 
such  executor  or  administrator,  and  shall  petition  the  county 
court  for  relief,  in  writing,  setting  forth  the  cause  of  such  appre- 
hension, the  said  court  shall  examine  such  petition,  and  if  the 
court  shall  deem  the  causes  therein  set  forth  sufficient  to  entitle 
such  petitioner  or  petitioners  to  relief,  if  true,  he  shall  summon 
such  executor  or  administrator  to  show  cause  against  such  peti- 
tion, and  may  dismiss  the  same,  or  direct  such  executor  or 
administrator  either  to  give  good  counter  security  to  save  such 
petitioner  or  petitioners  harmless,  or  to  give  a  new  bond  in  the 
like  penalty  as  the  first;  and  upon  refusal  or  neglect  to  give 
such  counter  security  or  new  bond,  the  letters  granted  to  such 
executor  or  administrator  may  be  revoked.'^^  The  sureties  upon 
an  administrator's  bond,  applied  to  the  probate  court  under 
this  section  of  the  statute,  to  have  the  administrator  give  a 
new  bond.  The  court  took  two  new  bonds  from  the  adminis- 
trator the  penalties  of  which  being  added  together,  equalled  in 
amount  the  penalty  in  the  old  bond.  This  was  held  to  be  a 
substantial  compliance  with  the  statute,  which  requires  that 
new  bonds  shall  be  in  the  like  penalty  as  the  first.  Where  a 
new  bond  is  given  by  an  administrator  or  executor  under  the 
statute,  the  sureties  upon  the  first  bond  are  released  from  all 
liability  for  past  as  well  as  for  subsequent  acts.  If,  instead  of 
a  new  bond  being  given,  the  letters  should  be  revoked,  the 
sureties  would  only  be  released  from  future  liabilities.'''^ 


72— R.  S.  of  1845,  p.  79,  rewrit-  Munroe    v.    People,    102    111.    215. 

ten;    section    33,    chapter    3,    "Ad-  This  case  will  indicate  the  method 

ministration  of  Estates,"   Starr  &  of   proper   procedure     wh«n     peti- 

Curtis  Annotated   Statutes  of  Illi-  tioning  the  court  for  an  order  re- 

nois.  Vol.  1,  p.  283;   Hurd's  R.  S.  yoking  letters   under  statute.   See 

of   111.,    1905,     same    section    and  also    as    such    guide    Solomon    v. 

chapter,  p.  110;   see  also  citations  People,   191  111.   290. 

(Ante  430)  as  to  "Official  Bonds";  73— People  v.  Lott,  27  111.  215. 


GRANTING  LETTERS  OF  ADMINISTRATION.  363 

437.  New  bond — form.  Section  34  of  the  administration 
act  provides:  "Whenever  a  new  bond  is  required  to  be  given 
by  an  executor  or  administrator  under  either  of  the  two  pre- 
ceding sections  the  formal  part  of  the  bond  shall  be  as  hereto- 
fore prescribed,  with  a  condition  thereto,  substantially  in  the 
following  form,  to-wit:  (form  given).  Which  bond  shall  be 
signed,  sealed,  approved,  attested  and  filed  in  the  same  manner 
as  other  executor's  or  administrator's  bonds,  and  shall  have 
relation  back  to  the  time  of  granting  letters  testamentary  or 
of  administration.*^^ 

438.  Surety  desiring  release  during  administration.  Section 
35  of  the  administration  act  provides:  "Whenever  any  surety 
on  the  bond  of  any  executor  or  administrator  desires  to  be  re- 
leased from  further  liability  upon  any  such  bond,  he  may 
petition  the  court  in  which  said  bond  is  filed  for  that  pur- 
pose, and  upon  notice  being  given  to  the  executor  or  adminis- 
trator, as  the  court  may  direct,  the  court  shall  compel  such 
executor  or  administrator,  within  a  reasonable  time,  to  be  fixed 
by  the  court,  to  settle  and  adjust  his  accounts,  and  pay  over 
whatever  balance  may  be  found  in  his  hands,  and  file  in  such 
court  a  new  bond,  in  such  penalty  and  security  as  may  be 
approved  by  the  court — which  being  done  the  surety  may  be 
discharged  from  all  liability  on  such  bond.  ""^  In  Clark  v. 
American  Surety  Co.,'^^  the  record  shows  the  surety  did  not 
file  any  petition  nor  even  ask  a  release.  The  petition  filed  in  the 
probate  court  was  that  of  the  administrator  and  it  did  not 
suggest  that  the  surety  desired  to  be  released,  but  did  ask  the 
court  to  have  the  surety  discharged  so  that  the  administrator 
could  make  an  investment  of  money  of  the  estate  to  which  the 
surety  would  not  consent,  and  therefore,  he  wanted  to  get  rid 

74 — R.    S.   1845,   p.   553,  section  3;   section  35,  chapter  3,  "Admin- 

80,  rewritten:    Section  34,  chapter  istration  of  Estates,"  Starr  &  Cur- 

3,    "Administration    of    Estates,"  tis  Annotated  Statutes  of  Illinois, 

Vol.  1,  pp.  283,  284;   Kurd's  R.  S.  Vol.  1,  p.  284;  Kurd's  R.  S.  of  111., 

of    III.,    1905,    same    section    and  1905,  same  section  and  chapter,  p. 

chapter,  p.  110.  110. 

75— Laws  of  1853,  p.  164,  section        76—171  111.,  p.  235. 


364  THE    LAW    OF   ESTATES. 

of  the  surety.  The  surety  did  not  appear  in  court,  but  its 
assistant  secretary  wrote  upon  the  draft  of  an  order  a  consent 
to  the  entry  of  that  order  releasing  it  from  all  liability.  That 
draft  of  order  was  found  defective  and  insufficient,  and  was 
not  entered,  but  another  order  discharging  the  surety  was  en- 
tered. The  order  entered  did  not  find  the  surety  was  in  court 
or  had  petitioned  for  its  release,  but  recited  this  motion  was 
made  by  the  administrator,  and  also  contained  the  statement 
"that  appellee  was  one  of  the  sureties  on  his  bond  and  that 
the  other  surety  had  been  notified  of  the  application,"  when, 
in  fact,  appellee  was  the  only  surety  on  the  bond.  The  court 
in  this  opinion  construes  sections  33  and  35  of  the  administra- 
tion act,  and  holds:  The  power  of  the  county  court  to  release 
the  surety  on  an  executor's  or  administrator's  bond,  is  derived 
wholly  from  the  statute;  the  provisions  of  the  statute  must  be 
strictly  complied  with.  The  county  court  cannot  release  a 
surety  on  such  bond,  without  first  requiring  the  executor  or 
administrator  to  adjust  his  accounts  and  pay  over  the  balance 
in  his  hands,  and  file  a  new  bond  in  such  penalty  and  with 
such  sureties  as  the  court  may  approve.  Notice  of  the  applica- 
tion of  a  surety  on  such  bond  for  his  release  need  he  given 
only  to  the  executor  or  administrator,  as  the  statute  makes  no 
provision  for  notice  to  heirs,  creditors,  or  other  interested  par- 
ties. The  petition  for  release  must  be  filed  by  the  surety,  and 
the  court  has  no  power  to  release  such  surety  upon  the  peti- 
tion of  the  administrator.  The  draft  of  an  order  for  the  re- 
lease of  a  surety  on  such  bond,  bearing  the  written  consent  of 
the  surety  to  the  entry  of  the  order  filed  by  the  administrator 
with  his  petition,  asking  for  the  release  of  the  surety,  does  not 
give  the  court  jurisdiction  to  enter  an  order  of  release.'^^ 

439.  Failure  of  executor  or  administrator  to  comply — ^re- 
moved— successor.  Section  36  of  the  administration  act  pro- 
vides: "If  such  executor  or  administrator  shall  fail  to  comply 
with  such  order  within  the  time  fixed  by  the  court,  the  court 

77— People  v.   Lott,   27   111.   215.     See  also  Clark  v.  Am.  Surety  Co., 

171    111.   235. 


GRANTING    LETTERS    OF    ADMINISTRATION.  365 

shall  order  that  such  executor  or  administrator  be  removed 
from  his  office,  and  shall  appoint  some  other  fit  person  as 
administrator,  with  the  will  annexed,  or  de  bonis  non,  who 
shall  give  a  bond  as  required  by  law.  And  in  case  of  the 
failure  of  the  former  executor  or  administrator  to  settle  his 
accounts  and  to  pay  over  to  the  person  so  appointed  all 
moneys,  effects  or  choses  in  action  in  his  hands  by  reason  of 
his  said  office,  then  such  successor  shall  proceed  to  collect  the 
same  by  suit  against  such  executor  or  administrator,  or  by  suit 
upon  his  bond;  and  upon  collection  thereof  such  surety  shall 
be  discharged. "^s  In  the  case  of  Branch  v.  Rankin,'^^  "it  is 
contended  that  there  is  no  power  given  to  appoint  an  adminis- 
trator with  the  will  annexed,  except  in  the  cases  enumerated  in 
sections  36,  37  and  38  of  the  administration  act;  namely,  the 
removal  of  an  executor  for  misconduct,  or  where  the  person 
named  executor  by  the  will  refuses  to  qualify,  and  where  there 
is  a  vacancy  in  the  office  of  executor,  occasioned  by  death  or 
resignation.  There  is  the  difference  mentioned,  that  in  the 
Rosenthal  case,^^  the  executor  had  deceased,  and  there  had 
been  an  appointment  by  the  court  in  Ohio  of  an  administrator 
with  the  awill  annexed.  But  this  is  but  a  difference  in  circum- 
stances between  the  cases,  making  no  distinction  in  principle, 
as  we  regard,  which  should  cause  any  variance  of  decision. 
The  sections  of  the  administration  act  referred  to  have  refer- 
ence to  the  ordinary  case  of  principal  administration  in  this 

78 — Laws   of   1853,   p.    164,  sec.  Pleas   in   Pickaway   county,   Ohio, 

5;   section  36,  chapter  3,  "Admin-  against    the    executor    of    the    de- 

istration  of  Estates,"  Starr  &  Cur-  ceased.      It   was    held,    the    allow- 

tis  Annotated  Statutes  of  Illinois,  ance  of  such  claim  in  the  county 

Vol.  1,  p.  284;  Hurd's  R.  S.  of  111,,  court    of    Cook     county,    Illinois, 

1905,  pp.  110,  111,  made  it  only  prima  facie  evidence 

79 — 108  111.  444,  448.  against  the  heirs  in  a  proceeding 

80 — See  Rosenthal  v.  Renick,  44  for  leave  to  sell  real  estate.     The 

111.    207.     In   this  case   the   claim  Rosenthal    case,    being    supported 

allowed    by    the    county    court    of  by    Stone   v.   Wood,    16    111.     177; 

Cook  county,   Illinois,   was  found-  Hopkins   v.   McCann,   19    111.   113; 

ed   on    a    judgment    rendered    in  Moline  Co.  v.  Webster,  26  111.  234; 

1860,    in    the    Court    of     Common  Branch  v.  Rankin,  108  111.  444. 


366  THE    LAW   OF   ESTATES. 

State,  and  do  not  apply  in  the  ease  of  an  ancillary  adminis- 
tration in  which  the  appointment  was  made.  Sections  42 
and  43  of  that  act,  taken  together,  seem  to  contemplate  that 
there  may  be  the  case  where  there  is  an  executor  in  a  foreign 
State,  and  an  administrator  with  the  will  annexed  in  this 
State.*^  Administrator  de  bonis  non  is  not  liable  for  property 
wrongfuUy  converted  by  deceased  executor  or  administrator. 
An  administrator  de  bonis  non  derives  his  title  from  the  de- 
ceased person  whose  estate  he  administers  upon,  and  not  from 
the  former  executor  or  administrator;  and  it  is  the  residuary 
legatees  under  the  will  who  are  the  parties  in  interest,  and 
they  are  the  persons  who  have  the  right  to  prosecute  the  per- 
sonal representatives  of  the  deceased  executor  for  any  waste 
or  misapplication  of  assets.^^ 

440.  Death  of  sole  executor  or  administrator.  Section  37  of 
the  administration  act  provides:  "When  a  sole  or  surviving 
executor  or  administrator  dies  without  having  fully  adminis- 
tered the  estate,  if  there  is  personal  property  not  administered, 
or  are  debts  due  from  the  estate,  or  is  anything  remaining  to 
be  performed  in  the  execution  of  the  will,  the  county  court 
shall  grant  letters  of  administration  with  the  will  annexed,  or 
otherwise,  as  the  case  may  require,  to  some  suitable  person,  to 
administer  the  estate  of  the  deceased  not  already  administered, 
and  the  securities  on  the  bond  of  such  deceased  administrator 
shall  be  liable  on  the  same  to  such  subsequent  administrator 
or  to  any  other  person  aggrieved  for  any  mismanagement  of 
the  estate  committed  to  his  care,  and  such  subsequent  adminis- 
trator may  have  and  maintain  all  necessary  and  proper  actions 
against  the  securities  of  such  former  executor  or  administrator 
for  all  such  goods,  chattels,  debts  and  credits  as  shall  have 
come  to  his  possession  and  are  withheld  or  may  have  been 
wasted,  embezzled  or  misapplied  and  no  satisfaction  made  for 

81 — Branch  v.   Rankin,  108   111.  Kirkpatrick,   14   111.   1;    Marsh  v. 

444.  People,   15   111.   284;    Duffin  v.   Ab- 

82— Bliss    V.    Seaman,    165    111.  bott,   48   111.  17;    United   States  v. 

422,   428,  429.     See  also  Rowan  v.  Walker,  109  U.  S.  258. 


GRANTING   LETTERS    OF    ADMINISTRATION.  367 

the  same.  Provided,  that  where  there  is  still  a  surviving  exec- 
utor or  administrator  he  may  proceed  to  administer  the  estate 
unless  otherwise  provided.  "^^ 

441.  Revocation  or  death  of  part.  Section  38  of  the  admin- 
istration act  provides:  "Where  the  letters  of  one  of  several  exe- 
cutors or  administrators  are  revoked,  or  one  or  more  of  the 
executors  or  administrators  die  or  become  disqualified  after  the 
execution  of  any  will,  but  before  the  probate  thereof,  or  one  or 
more  of  the  executors  or  administrators  die  or  become  dis- 
qualilied  after  their  appointment  by  the  court,  the  court  shall, 
on  petition  of  the  surviving  husband,  or  wife  or  next  of  kin 
of  the  testator,  or  if  there  are  none  such,  then  upon  the  peti- 
tion of  any  of  the  beneficiaries  named  in  such  will,  appoint 
others  in  their  place,  and  require  additional  bonds  from  the 
new  administrator,  or  administrators;  or  the  survivor  or  sur- 
vivors, or  such  as  shall  not  have  their  powers  revoked,  shall 
proceed  to  manage  the  estate.  When  the  letters  of  all  of  them 
are  revoked,  or  all  of  such  executors  or  administrators  die 
before  final  settlement  and  distribution  of  the  estate,  adminis- 
tration, with  the  Avill  annexed,  or  de  bonis  non,  shall  be  granted 
to  the  person  next  entitled  thereto.  Provided,  that  in  making 
any  appointment  under  this  section,  the  court  shall  give  prefer- 
ence to  the  surviving  husband,  or  wife,  or  next  of  kin  of  the 
deceased,  or  beneficiaries  named  in  the  will,  in  the  order 
named.s*     An   administrator   de   bonis   non  or  with   the   will 

83 — Section  37,  chapter  3,  "Ad-  of  property  of  deceased  person,  see 
ministration  of  Estates."  As  Newhall  v.  Turner,  14  111.  33S; 
amended  by  act  approved  April  1,  Marsh  v.  People,  15  111.  284;  Duf- 
1887,  Laws  of  1887,  p.  1,  Starr  &  fin  v.  Abbott,  48  111.  17;  Hanifan 
Curtis  Annotated  Statutes  of  lUi-  v.  Needles,  108  111.  403;  Branch  v. 
nois,  with  Jones  &  Addington's  Rankin,  108  111.  444;  Bliss  v.  Sea- 
Supplements  thereto.  Vol.  1,  p.  man,  165  111.  422.  See  also  section 
284;  Vol.  4,  p.  34,  and  cases  cited  100,  chapter  3,  "Administration  of 
under  section  of  statute  in  each  Estates,"  Starr  &  Curtis  Annotat- 
volume;  Kurd's  R.  S.  of  111.,  1905,  ed  Statutes  of  111.,  Vol.  1,  p.  327. 
same  section  and  chapter,  p.  111.  84 — As  amended  by  lav/s  of 
As  to  powers  of  an  administrator  1901,  p.  2;  section  38,  chapter  3, 
de  honis  non,  and  title  he  takes  "Administration  of  Estates,"  Starr 


368  THE    LAW   OF   ESTATES. 

annexed  succeeds  to  the  duties  and  powers  of  the  executor 
which  result  from  the  nature  of  his  office  as  executor,  but  not 
to  those  in  the  nature  of  a  personal  trust  or  confidence.^^ 
The  general  rule  is,  that  the  duties  and  powers  of  an  executor, 
which  result  from  the  nature  of  his  office  as  executor,  devolve 
upon  the  administrator  with  the  will  annexed.  But  the  duties 
and  powers,  which  are  imposed  upon  an  executor  as  a  trustee, 
are  in  the  nature  of  a  personal  trust  or  confidence  reposed  in 
him  by  the  testator,  and  do  not  devolve  upon  the  administra- 
tor with  the  will  annexed,  inasmuch  as  they  cannot  be  dele- 
gated.^*^ 

442.  Liability  after  revocation.  Section  39  of  administra- 
tion act  provides:  "In  all  cases  where  any  such  executor  or 
administrator  shall  have  his  letters  revoked,  he  shall  be  liable 
on  his  bond  to  such  subsequent  administrator,  or  to  any  other 
person  aggrieved,  for  any  mismanagement  of  the  estate  com- 
mitted to  his  care;  and  the  subsequent  administrator  may 
have  and  maintain  actions  against  such  former  executor  or 
administrator  for  all  such  goods,  chattels,  debts  and  credits  as 
shall  have  come  to  his  possession,  and  which  are  withheld  or 
have  been  wasted,  embezzled  or  misapplied,  and  no  satisfac- 
tion made  for  the  same."^'^ 

443.  Resignation  of  executor  or  administrator — settlement. 

Section  40  of  the  administration  act,  provides:    "An  executor 
or  administrator  may,  upon  his  petition  and  upon  giving  such 

&  Curtis  Annotated  Statutes  of  75;  section  39,  chapter  3,  "Admin- 
Illinois,  with  Jones  &  Addington's  istration  of  Estates,"  Starr  &  Cur- 
Supplements  thereto.  Vol.  1,  p.  tis  Annotated  Statutes  of  Illinois, 
285;  Vol.  4,  p.  34;  Kurd's  R.  S.  with  Jones  &  Addington's  Supple- 
of  111.,  1905,  same  section  and  ments  thereto.  Vol.  1,  p.  285;  Vol. 
chapter,  p.  111.  4,  p.  35,  and  cases  cited  under  sec- 

85 — Penn  v.  Folger,  182  111.  76.  tion  of  statute    in    each    volume; 

86— Hall  V.  Irwin,  2    Gilm.  (111.)  Kurd's  R.    S.   of  Illinois,   1905,   p. 

176;    Nicoll   v.   Scott,    99    111.    529;  111;    see  Ante   426,    citing  section 

see  also  Munroe    v.  People,  102  111.  13,    chapter    103,     "Official     Bond 

406.  Act."      Nevitt    v.    Woodburn,    160 

87— R.    S.    1845,    p.    552,    section  111.  214. 


GRANTING    LETTERS    OF    ADMINISTRATION.  369 

notice  to  the  legatees,  devisees  or  distributees,  as  the  court  shall 
direct,  be  allowed  to  resign  his  trust  when  it  appears  to  the 
county  court  to  be  proper;  and  upon  such  resignation  the 
court  shall  grant  letters  of  administration,  with  the  will  an- 
nexed, or  de  bonis  non,  to  some  suitable  person,  to  administer 
the  goods  and  estate  not  already  administered.  But  no  admin- 
istrator or  executor  shall  be  discharged  till  he  shall  have  made 
full  settlement  with  the  court  and  complied  with  its  orders, 
and  shall  deliver  to  his  successor  all  money,  chattels  and  effects 
of  the  estate  in  his  hands  not  paid  over  according  to  the  orders 
of  the  court.  "*^  Under  this  statute  the  county  court  has  juris- 
diction, and  may  accept  the  resignation  of  executor,  and  the 
co-executor  consenting  thereto,  is  bound  by  the  order  of  such 
court.^^  In  the  case  of  Smith  v.  Smith,^'^  the  following  facts 
appear  in  the  record.  The  executor  resigned  from  office  and 
the  sole  devisee  consented  thereto.  The  county  court  appointed 
no  successor,  but  directed  by  its  order,  that  the  executor  make 
settlement  of  his  executorship,  and  deliver  over  the  effects  to 
his  successor.  Afterwards,  a  bill  was  filed  for  the  purpose  of 
contesting  the  will  in  the  circuit  court,  and  there  the  executor 
who  resigned  being  a  party  to  such  bill,  upon  motion  and 
presenting  to  the  court  the  order  of  the  county  court  accept- 
ing such  resignation  was  dismissed  from  said  proceedings.  In 
the  opinion  of  the  court  page  494,  section  40  of  the  adminis- 
tration act  was  construed;  it  being  held,  the  county  court  has 
power  to  allow  an  executor  to  resign  his  trust,  when  it  appears 
to  the  court  to  be  proper.  It  is  to  be  presumed  the  county 
court  did  its  duty  and  acted  upon  proper  consideration  when 
it   accepted   such   resignation;    especially,   as  the   sole   devisee 

88 — Laws  of  1849,  p.  100,  section  under   section   in    each    volume; 

1;    Laws  of   1853,   p.   163,   sec.   1;  Kurd's  R.   S.  of  III.,  1905,  p.  Ill; 

section   40,    chapter   3,   "Adminis-  see  also  Marsh  v.  People,  15   111. 

tration  of  Estates,"  Starr  &  Curtis  284;  Ante,  sec.  29.  Administration 

Annotated     Statutes     of     Illinois,  Act. 

with  Jones  &  Addington's  Supple-  89 — Davenport    v.     Reynolds,    6 

ments    thereto.      Vol.    1,    pp.    285,  111.  App.  532. 

286;  Vol.  4,  p.  35,  and  cases  cited  90—168    111.   488. 
24 


370  THE    LAW    OF   ESTATES. 

under  the  will  consented  thereto.  The  matter  of  the  subse- 
quent accounting  of  the  executor  resigned,  was  a  matter  to 
be  disposed  of  by  the  county  court. 

444.  Costs.  Section  41  of  the  administration  act,  provides: 
**The  applicant  for  discharge  shall  pay  all  costs  incurred 
thereby,  and  the  court  shall  render  a  judgment  against  him 
for  all  such  costs,  which  may  be  collected  by  execution,  as  in 
case  of  other  judgments.  "®i 

445.  Foreign  executors  and  administrators — powers  to  sue. 
Section  42  of  the  administration  act  provides:  "When  any 
person  has  proved  or  may  prove  the  last  will  and  testament  of 
any  deceased  person,  and  taken  on  him  the  execution  of  said 
will,  or  has  obtained  or  may  obtain  administration  of  the 
estate  of  an  intestate  in  any  State  in  the  United  States,  or  in 
any  Territory  thereof,  such  person  shall  be  enabled  to  prose- 
cute suits  to  enforce  claims  of  the  estate  of  the  deceased,  or 
to  sell  lands  to  pay  debts,  in  any  court  in  this  State,  in  the 
same  manner  as  if  letters  testamentary  or  of  administration 
had  been  granted  to  him  under  the  provisions  of  the  laws  of 
this  State:  Provided,  that  such  person  shall  produce  a  copy 
of  the  letters  testamentary  or  of  administration,  authenticated 
in  the  manner  prescribed  by  the  laws  of  Congress  of  the 
United  States  for  authenticating  the  records  of  judicial  acts  in 
any  one  State,  in  order  to  give  them  validity  in  other  States; 
and,  provided,  that  said  executor  or  administrator  shall  give  a 
bond  for  costs,  as  in  case  of  other  non-residents."^-  Suits  by 
foreign  executors  or  administrators  are  subject  to  same  rules 
of  pleading  as  those  by  domestic  representatives.^^     Prior  to 

91 — Law  of  1858,  p.  165,  sec.  5,  ministration  of  Estates,"   Starr  & 

rewritten;    section   41,    chapter   3,  Curtis  Annotated  Statutes  of  Illi- 

"Administration  of  Estates,"  Starr  nois.   Vol.    1,     p.     286.    and    cases 

&    Curtis    Annotated    Statutes    of  cited;    Kurd's    R.    S.    of    Illinois, 

Illinois,  Vol.  1,  p.  286;   Kurd's  R.  1905,  p.  112. 

S.  of  ni.,  1905,  p.  112.  93— Collins    v.     Ayers,     13     111. 

92— Section  42,   chapter  3,  "Ad-  358;    U.  R.   &  T.   Co.   v.   Shacklet, 

119  111.  232,  239. 


GRANTING    LETTERS    OF   ADMINISTRATION.  371 

statute  cited  such  could  not  sue  in  this  State.^^  Power  is  con- 
ferred by  statute  upon  foreign  administrator  to  take  out 
execution  on  judgment  obtained  by  his  intestate  during  his 
lifetime.^5  Foreign  administrator  may  collect  debts  due  his 
intestate  in  this  State,  if  administration  is  not  granted  to 
another  in  this  State.'-^^  Such  administrator  from  a  foreign 
State  may  sue  for  injuries  to  the  intestate  by  railroad  com- 
pany or  otherwise.^  ■^  He  may  appear  in  court  in  any  way  in 
which  it  becomes  necessary  for  him  to  prosecute  or  defend  any 
claim  in  relation  to  the  estate  he  represents.^*  In  chancery  a 
foreign  administrator's  final  settlement  of  account  in  proper 
court  of  foreign  State,  is  conclusive  in  his  favor  where  a  suit 
is  brought  in  this  State,  unless  such  settlement  shall  be  im- 
peached for  fraud.^^  Letters  of  foreign  administrator  may  be 
proved  under  Act  of  Congress,^  or  may  be  proved  by  examined 
copy  of  the  record  of  appointment,  satisfactorily  proved  by 
oral  testimony  to  be  true.2 

446.  Exception  when  letters  granted  here.  Section  43  of 
the  administration  act  provides:  "Nothing  contained  in  the 
preceding  section  shall  be  so  construed  as  to  apply  to  cases 
where  administration  is  obtained  upon  the  estate  of  any  in- 
testate nor  where  letters  testamentary  are  granted  in  this 
State;  and  when,  after  any  suit  is  commenced  by  any  admin- 
istrator or  executor  under  the  provisions  of  the  preceding 
section,  and  before  final  judgment  thereon,  administration  is 
had,  or  execution  undertaken  within  this  State,  under  the  laws 
of  the  same,  upon  the  estate  of  any  decedent,  upon  suggestion 

94 — People     v.    Peck,    3    Scam.  99 — Fryrear     v.     Lawrence,     5 

(III.)    118;    Judy   v.   Kelly,    1    111.  Gilm.    (111.)    325. 

211;   Collins  v.  Ayers,  13  111.  358.  i_oollins  v.  Ayers.  13  111.  358. 

95— Keefer    v.     Mason,     36     111. 

406.  2— U.  R.  and  T.  Co.  v.  Shacklett, 

96— Hickox    v.    Frank,    102    111.  119  111.  232,  240.  See  also  1  Green- 

660.  leaf  on    Evidence,    501;     Freeman 

97_Wabash  R.  R.  Co.  v.  Shack-  on  Judgments,  sec.  408;  1  Wharton 

lett,  10  111.  App.   404.  on  Evidence,  sees.  94,  98;   Abbott 

9g — Decker    v.    Patton,    20    111.  on  Trial  Evidence,  pp.  25,  536. 
App.  210. 


372  THE    LAW   OF   ESTATES. 

of  such  fact,  entered  of  record,  the  said  resident,  administra- 
tor or  executor  shall,  upon  motion,  be  substituted  as  party  to 
such  suit;  and  thereupon  the  court  shall  proceed  to  hear  and 
determine  the  same,  as  if  it  had  been  originally  instituted  in 
the  name  of  the  said  resident,  executor  or  administrator,  and 
the  benefits  of  the  judgment,  order  or  decree  shall  enure  to 
him,  and  be  assets  in  his  hands.  "^ 

3 — Laws  of  1845,  p.  597,  sec.  Starr  &  Curtis  Annotated  Statutes 
3,  rewritten;  section  43,  chapter  of  Illinois,  Vol.  1,  p.  287;  Kurd's 
3,    "Administration    of    Estates,"     R.  S.  of  111.,  1905,  p.  112. 


CHAPTER  XXII 


B^VENTORIES  AND  APPRAISEMENTS 


Sec. 

447.  Inventories      and      appraise- 

ments. 

448.  The   title   of   the   administra- 

tor. 

449.  Each  case  arising  makes  the 

rule,  no  unbending  rule. 

450.  Life     insurance     and     certifi- 

cates of  benefit. 

451.  What  are  personal  assets. 

452.  Growing  crops. 

453.  Concerning     the     species     of 

property. 


Sec. 

454.  Supplemental   inventory. 

455.  Warrant  of  appraisal. 

456.  Oath,  appraisal. 

457.  Return  of  appraisal. 

458.  Inventory,  etc.,  evidence. 

459.  Further  appraisal. 

460.  Liabilities    of    executors    and 

administrators. 

461.  Compensation. 

462.  When    assets    do    not    exceed 

widow's  allowance,  new  as- 
sets. 


447.  Inventories  and  appraisements.  "Whenever  letters  tes- 
tamentary, of  administration,  or  of  collection  are  granted,  the 
executor  or  administrator  shall  make  out  a  full  and  perfect 
inventory  of  all  such  real  and  personal  estate,  or  the  proceeds 
thereof,  as  are  committed  to  his  superintendence  and  manage- 
ment, and  as  shall  come  to  his  hands,  possession  or  knowledge, 
describing  the  quantity,  situation  and  title  of  the  real  estate, 
and  (Particularly  specifying  the  nature  and  amount  of  all 
annuities,  rents,  goods,  chattels,  rights  and  credits  and  money 
on  hand,  and  whether  the  credits  are  good,  doubtful  or  desper- 
ate; which  said  inventory  shall  be  returned  to  the  office  of  the 
clerk  of  the  county  court,  within  three  months  from  the  date 
of  the  letters  testamentary  or  of  administration."^  Under  this 
and  other  sections  of  the  statute  cited,^  it  is  very  important 

1 — R.  S.  1845,  p.  554,  sec.  81;  &  Addington's  Supplements  there- 
sections  51  and  122,  chapter  3,  to,  Vol.  1,  pp.  289,  290,  and  cases 
"Administration  of  Estates."  cited;    Vol.    4,    p.    35,     and     cases 

2— (1.)   Starr  &  Curtis    Annotat-  cited;    Kurd's  R.   S.   of  111.,  1905, 

ed  Statutes  of    Illinois,  with  Jones  same  section  and  chapter,  p.  113. 

373 


374  THE    LAW   OF   ESTATES. 

that  a  full  and  perfect  inventory  be  presented  and  filed.  The 
inventory  required  by  the  statute  should  include  specifically 
the  entire  assets  of  the  estate  as  far  as  discovered  coming  to 
the  knowledge  of,  or  in  hands  of  executor  or  administrator  or 
under  their  management  or  control.  This  instrument  should 
enable  the  court  to  trace  the  assets  with  which  the  legal  rep- 
resentative of  the  estate  is  chargeable;  or,  might  be  so  after 
proper  diligence.  Particularly  should  such  instrument  specify 
all  real  and  personal  estate,  the  proceeds  thereof,  the  nature 
and  amount  of  all  annuities,  rents,  goods,  chattels,  rights  and 
credits,  money  on  hand,  and  whether  the  credits  are  good, 
doubtful  or  desperate? 

448.  The  title  of  the  administrator.  He  takes  no  title  to 
realty,  but  a  naked  power  to  subject  the  real  estate  for  sale 
to  pay  debts  in  case  of  an  insufficiency  of  personalty.*  The 
title  to  the  lands  of  the  deceased  vests  eo  instanti  in  the  heirs 
on  the  ancestor's  death.-^  Rents  of  real  estate  accruing  after 
death  pass  to  heirs  and  devisees  and  not  to  administrator.^ 
The  executor  or  administrator  by  virtue  of  his  office  takes 
the  absolute  title  to  the  personal  estate,  and  is  the  sole  repre- 
sentative thereof,  and  after  the  payment  of  debts  must  with 
the  aid  of  court  distribute  the  same.''' 

449.  Each  case  arising  makes  the  rule — there  is  no  unbend- 
ing rule.    It  will  be  found  on  an  examination  of  the  cases,  that 

(2.)   Starr   &   Curtis     Annotated  3 — Maynard  v.  Maynard,  96  111. 

Statutes  of  Illinois,  with  Jones  &  App.   478. 

Addington's   Supplements    thereto,  4— Noe  v.  Montray,  170  111.  169; 

Vol.    1,    pp.    314,    315,     and     cases  Burr   v.   Bloemer,   174  111.   638. 

cited;  Vol.  4,  pp.  39,  40,  and  cases  ^     „      ,            ■„      ,         .„„     .„ 

•^  A      TT     A>     x>     o      r.f    Tin   ^ic  5— People    V.    Brooks,     123     111. 

cited;    Hurds   R.    S.     of    Illinois,  ^r-,     ^             t^ 


251;  Rupp  V.  Rupp,  11  Colo,  Ct.  of 
App.  36. 


1905,  p.  118. 

(3.)   Starr   &   Curtis    Annotated 

Statutes  of  Illinois,  with  Jones  &  6— Richardson  v.  Richardson,  87 

Addington's   Supplements    thereto,  ^l-  App.  358;   Hoagland  v.  Crum, 

Vol.  1,  pp.  336,  337,  338,  and  cases  ^^^  J^"-  '^'^^• 

cited;  Vol  4,  pp.  43,  44,  and  cases  7 — Gold  v.  Bailey,  44  111.  429; 
cited;  Vol.  5,  p.  112,  and  cases  Wells  v.  Miller,  45  111.  383;  Rail- 
cited;  Kurd's  R.  S.  of  111.,  1905,  road  Co.  v.  Woodward,  4  Colo.  1. 
p.   123. 


INVENTORIES  AND  APPRAISEMENTS.  375 

the  executor  or  administrator  is  lei't  to  depend  largely  upon 
what  may;  be  required  for  the  attainment  of  justice  in  each 
case  as  it  arises  to  determine  whether  property  is  real,  personal 
or  mixed,  and  what  steps  must  be  taken  by  such  representa- 
tives to  bring  the  property  of  the  decedent  under  their  super- 
vision and  management.  Thus  money  due  upon  a  contract 
from  sale  of  lands,  although  no  deed  has  been  executed  is 
assets  that  may  go  to  the  administrator.^  And  it  is  held,  that 
if  the  administrator  improperly  collects  rents  from  lands,  and 
the  heirs  choose  to  treat  such  rents  collected  as  assets  for  the 
payment  of  debts,  the  administrator  cannot  complain  of  being 
charged  with  the  rents,  particularly  so  where  such  money  has 
been  used  in  paying  debts  of  the  estate.^  The  administrator 
takes  the  property,  in  the  condition  he  finds  it,  or  as  it  is  left 
by  the  decedent;  and  if  such  property  is  subjected  to  a  lien,, 
such  follows  the  property  in  the  hands  of  the  administrator.^" 
If  the  administrator  buys  a  leasehold  with  his  own  funds  and 
takes  title  in  his  own  name,  accounting  for  such  as  assets  of 
the  estate  he  represents,  he  may  be  permitted  to  retain  the 
amount  paid  for  the  leasehold  under  the  circumstances  from 
the  rent  that  came  to  his  hands;  but  he  will  be  estopped 
from  denying  that  the  leasehold  is  an  asset  of  the  estate.^ ^  In 
the  interesting  case  of  Wells  v.  Miller,  administrator,^^  an 
action  of  trover  was  commenced  for  the  tortious  taking  of  a 
quantity  of  lumber.  The  record  shows  that  the  decedent  and 
the  defendants  were  residents  of  the  State  of  Illinois;  that 
decedent  was  personally  in  charge  of  the  cargo  of  lumber  in 
question,  transporting  the  same  from  Illinois  to  the  State  of 
Tennessee;  that  while  in  transitu,  and  on  the  Missouri  shore, 
the  decedent  died,  leaving  no  assets  or  creditors  residing  else- 
where than  in   Illinois,  and  that  no  administration  had  been 

8 — Skinner  v.  Newberry,  51  111.    251;  First  National  Bank  v.  Gage, 
203.  93  111.  175;   Henry  v.  Eddy,  34  111. 

9 — Goeppner   v.    Leitzelman,    98     508. 
111.  414,  11— Willenborg    v.    Murphy,    36 

10— People    V.    Brooks,    123    111.     111.  345. 

12—45  111.  382. 


376  THE    LAW    OF   ESTATES. 

taken  out  in  either  of  the  States,  Missouri  or  Tennessee,  to 
which  latter  State  the  property  was  taken  by  defendants  and 
sold,  the  proceeds  of  the  sale  being  brought  to  Illinois.  The 
court  in  passing  upon  this  state  of  facts,  hold:  That  if  the 
property  of  the  decedent  after  his  death  in  Missouri,  was  at 
any  time,  while  in  transitu  within  the  limits  of  the  State  of 
Illinois,  it  became  assets  in  this  State,  and  the  title  of  the 
administrator  here  attached  by  relation,  the  moment  letters 
were  issued.  The  law  applied  being,  that  property  coming 
from  a  foreign  jurisdiction  into  that  of  the  domicile  imme- 
diately vests  in  the  administrator  there,  if  letters  have  not  been 
taken  out  in  such  foreign  jurisdiction.^^  "According  to  the 
common  course  of  commercial  business,  ships  and  cargoes,  and 
the  proceeds  thereof,  locally  situate  in  a  foreign  country  at  the 
time  of  the  death  of  the  owner  always  proceed  on  their  voy- 
ages and  return  to  the  home  port,  without  any  suspicion  that 
all  the  parties  concerned  are  not  legally  entitled  to  act;  and 
they  are  taken  possession  of  and  administered  by  the  adminis- 
trator of  the  forum  domicilii,  with  the  constant  persuasion 
that  he  may  not  only  rightfully  do  so,  but  that  he  is  bound  to 
administer  them  as  part  of  the  funds  appropriately  in  his 
hands.  A  different  course  of  administration  would  be  at- 
tended with  almost  inextricable  difficulties,  and  would  involve 
this  extraordinary  result,  that  all  the  personal  property  of  the 
deceased  must  be  deemed  to  have  a  fixed  situs  where  it  was 
at  the  moment  of  his  death,  and  if  removed  from  it  must  be 
returned  thither  for  the  purpose  of  due  administration.  "^  * 
There  is  no  unbending  rule  in  regard  to  property  having  no 
fixed  situs,  the  jurisdiction  of  the  administrator  is  left  to  de- 
pend largely  upon  what  may  be  required  for  the  attainment  of 
justice  in  each  case  as  it  arises.^ ^  In  the  case  of  Abbott  v.  The 
People, ^^  the  record  shows  appellants  were  appointed  adminis- 

13 — Story's    Conflict    of    Laws,    Laws,  sec.  520,  and  cases  cited  in 
section  520.  notes. 

14 — The  rule  as  formulated  by        15 — Wells    v.    Miller,    Adm.,    45 
Story    in    his    work,    Conflict   of    111.,  p.  388. 

16—10  111.  App.  62. 


INVENTORIES   AND  APPRAISEMENTS. 


377 


trators  of  D's  estate  in  Fulton  County,  Illinois.  Subsequently 
appellee  was  appointed  administrator  of  L's  estate  in  Knox 
County,  Illinois,  and  demanded  of  appellants  possession  of 
certain  property,  promissory  notes,  as  belonging  to  the  estate 
of  his  intestate.  Held,  that  as  the  property  belonged  to  the 
estate  of  L  the  county  court  of  Knox  county  had  jurisdiction, 
and  appellants  were  in  fault  in  reporting  such  property  as 
assets  of  the  estate  of  D.  To  realize  on  an  estate,  the  executor 
or  administrator  should  inventory  every  possible  species  of 
property  belonging  thereto,  and  in  which  deceased  had  any 
interest.^' 

450.  Life  insurance  and  certificates  of  benefit.  Life  insur- 
ance made  payable  to  the  ''legal  representatives"  of  the  in- 
sured, goes  to  the  administrator,  who  takes  the  money  to  be 


17 — Auburn  State  Bank  v. 
Brown,  172  111.  284;  McCollister 
V.  Green  County  Bank,  171  111. 
608;  Waughup  v.  Bartlett,  165  111. 
124;  Dinsmoor  v.  Bressler,  164 
111.  211;  Maynard  v.  Maynard,  96 
111.  App.  478.  In  the  case  of  Mc- 
Collister V.  Green  County  Bank, 
supra,  the  county  court  entered  an 
order  requiring  the  administrator 
of  the  estate  in  question  to  inven- 
tory certain  tracts  of  land,  as  the 
property  of  the  decedent  at  the 
time  of  his  death  and  to  file  a  pe- 
tition, under  the  statute,  for  a 
decree  and  order  of  sale  of  ranch 
land  required  to  be  inventoried, 
and  from  this  order  an  appeal  was 
taken.  In  passing  on  this  case 
the  court  holds:  The  administra- 
tor had  no  such  interest  as  was 
necessary  to  enable  him  to  prose- 
cute the  appeal.  The  sole  reason 
urged  by  the  administrator  why 
the  judgment  appealed  from 
should  be  reversed  was  that  the 
decedent,  though  vested  with  the 


possession  of  the  lands  in  contro- 
versy during  his  lifetime  and  at 
the  time  of  his  death,  had  but  a 
life  estate  therein.  Held,  in  that 
case  the  administrator  had  no 
such  interest  as  would  entitle  him 
to  an  appeal  from  an  order  direct- 
ing him  as  administrator,  to  take 
necessary  steps,  under  the  statute, 
to  bring  the  contention  before  the 
county  court  for  determination, 
and  such  an  order  is  not  a  griev- 
ance of  which  he  may  be  heard  to 
complain.  It  is  a  rule  well  estab- 
lished, that  the  right  to  relief  by 
appeal  exists  only  in  favor  of  a 
party  whose  rights  have  been 
prejudiced  by  the  judgment  ap- 
pealed from.  And  see  the  follow- 
ing cases  in  point:  Combs  v.  Jef- 
ferson Pond  Draining  Co.,  3  Mete. 
(Ky.)  72;  Stewart  v.  Codd,  58 
Me.  86;  Elliott  on  Appellate  Proc, 
sees.  135,  292;  Woerner  on  Am. 
Law  of  Administration,  sec.  545; 
Am.  &  Eng.  Ency.  of  Law,  p.  619, 
and  cases  cited  in  notes. 


378  THE    LAW   OF   ESTATES. 

paid  out  in  due  course  of  administration.^^  "Legal  repre- 
sentatives" mean  executors  or  administrators.^^  A  benefit 
certificate  provided  for  the  payment  of  one  assessment,  not  ex- 
ceeding $5,000  on  the  death  of  the  certificate  holder,  "to  his 
devisees,  as  provided  in  last  will  and  testament,  or,  in  the 
event  of  their  prior  death,  to  the  legal  heirs  of  the  certificate 
holder";  and  the  certificate  holder  by  his  will  gave  the  pro- 
ceeds of  the  certificate  to  a  trustee  in  trust  for  his  legal  heirs, 
after  first  keeping  the  fund  at  interest  till  his  wife  died  and 
his  youngest  child  became  20  years  of  age,  and  paying  such 
interest  to  his  wife.  The  same  person  who  was  appointed  trus- 
tee was  also  made  executor  of  the  will.  Held,  that  the  fund 
was  not  assets  of  the  estate,  and  the  executor,  as  such,  was  not 
entitled  to  it.  He  would  however  in  the  capacity  of  trustee 
take  under  the  trust  created.^^ 

451.  What  are  personal  assets.  Usually  such  are  easily 
determined  without  difficulty.  But  the  exception  occasionally 
arises,  as  -shoAvn  in  the  preceding  and  the  following  section. 
Where  the  question  is  raised,  it  is  made  necessary  to  determine 
the  same  by  legal  construction.  As  before  stated,  there  is  no 
unbending  rule  in  regard  to  property  having  no  fixed  situs. 
Yet  it  will  be  found  that  many  well  established  rules  for  the 
attainment  of  justice  are  applied  for  that  end  and  purpose. 
The  general  rule  is  to  the  effect,  that  all  personal  estate,  for 
the  purpose  of  administration  must  be  treated  as  assets.  There 
are,  however,  exceptions  to  this  rule  for  the  statute  law  of  Illi- 
nois, declare  that  damages  for  wrongfully  causing  the  death  of 
a  party,  are  not  assets,  and  creditors  have  no  interest  in  such 
damages  when  recovered.  Actions  for  damages  to  the  person 
or  property  of  the  deceased  are  brought  by  the  legal  repre- 
sentatives of  the  deceased  under  the  statute,  and  are  exclus- 
ively for  the  "benefit  of  the  widow  and  next  of  kin  of  such 

18— Johnson  v.  Van  Epp,  110  111.  19— People  v.  Phelps,  78  111.  149. 
553;  Murray  v,  Strang,  28  111.  App.  20— People  v.  Petrie,  191  111. 
612.  497;    Same  v.   Same.   94   111.   App. 

652. 


INVENTORIES  AND  APPRAISEMENTS.  379 

deceased  person.  "^^  These  actions  by  statutory  enactment  sur- 
vive in  addition  to  those  which  survive  by  common  law.  Re- 
plevin, damages  for  injury  to  the  person  (except  slander  and 
libel),  damages  for  an  injuiy  to  real  or  personal  property,  or 
for  the  detention  or  conversion  of  personal  property,  and 
actions  against  officers  for  malfeasance  or  non-feasance  of 
themselves  or  their  deputies,  and  all  actions  for  fraud  or  de- 
ceit.22 

452.  Growing  crops.  As  between  executor  or  administrator 
and   heir,    statute    makes    growing    crops    personal    property .^^ 

21 — See  sections  1  to  5,  chapter  able,  viz.:  Robinson  v.  Weeks,  6 
70,  "Injuries."  See  section  122,  How.  Pr.  161;  Hall  v.  Cincinnati 
chapter  3,  "Administration  of  Es-  Railroad  Co.,  1  Disney  58;  More  v. 
tates."  Starr  &  Curtis  Annotated  Massini,  32  Cal.  590;  National  Ex- 
Statutes  of  Illinois,  with  Jones  &  change  Bank  v.  McLoon,  73  Me. 
Addington's  Supplements  thereto,  498;  Weire  v.  Davenport,  11  Iowa 
Vol.  2,  pp.  2155  to  2161,  and  cases  49;  Fried  v.  N.  Y.  Cent.  R.  R.  Co., 
cited;  Vol.  4,  pp.  679,  680,  and  43  N.  Y.  Sup.  Ct.  1;  Vimont  v.  Chi- 
cases  cited;  Vol.  5,  p.  294,  and  cago  &  Northwestern  Ry.  Co.,  64 
cases  under  general  notes,  p.  312,  Iowa  513;  Gray  v.  McAllen,  4  Iowa 
and  cases  cited  under  section  2  of  497;  Zagbaum  v.  Parker,  66  Barb, 
statute;  Hurd's  R.  S.  of  111.,  1905,  341;  Brady  v.  Whitney,  24  Mich, 
same  sections  and  chapter,  pp.  154;  Grant  v.  Ellis,  26  Mich.  201; 
1152,  1153.  See  also  section  123,  Final  v.  Backus,  18  Mich.  218; 
chapter  3,  entitled  "Administra-  Brackett  v.  Griswold,  103  N.  Y. 
tion."  Starr  &  Curtis  Annotated  425;  Stewart  v.  Houston  and  Tex- 
Statute,  etc..  Vol.  1,  pp.  344,  345,  as  Central  Ry.  Co.,  62  Tex.  246; 
and  cases  cited;  Hurd's  R.  S.  of  Railroad  Co.  v.  Freeman,  57  Tex. 
111.,  1905,  p.  125.  156;  Choteau  v.  Boughton,  100  Mo. 

22— Bunker    v.     Green,     48    111.  406;     Schneider     v.    Wabash,     St. 

243;   Holton  v.  Daly,  106  111.  131;  Louis    and    Pacific   R.    R.    Co.,    86 

Wehr  v.  Brooks,  21  111.  App.  115;  Mo.  613;  Chicago  and  Eastern  Illi- 

Garvey   v.    Coughlin.    92   111.    App.  nois   R.    R.   Co.    v.   Beaver,   Adm., 

582;  C.  &  B.  I.  R.  R.  Co.  v.  O'Con-  199  111.,  34,  38;    Mattoon  Gaslight 

nor,    19    111.   App.    591;     Same    v.  and   Coke   Co.   v.    Dolan,    105    111. 

Same,  119  111.  586;  Northern  Trust  App.  3. 

Co.  V.  Palmer,  171  111.  387;  Forest        23— Powell  v.  Rich,  41  111.  466; 

City  Ins.   Co.   v.   Hardesty,   Admr.  Creel  v.  Kirkham,  47  111.  345;   see 

182  111.  39;   North  Chicago  Street  section    94,    chapter    3,    "Adminis- 

R.  R.  Co.  V.  Ackley,   171  111.   100,  tration  of  Estates,"   Starr  &  Cur- 

and  authorities  cited  on  page  106;  trs  Annotated  Statutes  of  Illinois, 

showing  cause  of  action  is  assign-  Vol.  1,  p.  321;  Hurd's  R.  S.  of  111., 

1905,  p.   120. 


380  THE    LAW    OF    ESTATES. 

Where  rent  or  its  equivalent  is  to  be  paid  out  of  the  crops 
raised,  there  is  a  letting  for  the  raising  of  the  crop,  a  par- 
ticipation in  the  profits  of  the  land  yield.  Such  does  not 
amount  to  a  lease,  but  is  held  to  be  a  contract  between  the 
owner  and  the  occupier  who  are  treated  as  tenants  in  com- 
mon of  the  crop.24 

453.  Concerning  the  species  of  property.  It  will  be  found 
by  an  examination  of  the  cases,  that  decisions  as  to  kinds  and 
species  of  property  are  generally  fixed  to  fit  the  particular  case 
under  consideration.  Such  cases  involve  questions  of  law  and 
facts,  the  controlling  facts  influencing  the  legal  finding.  It  is 
unnecessary  to  enumerate  articles  that  have  been  held  fixtures, 
for  the  courts  decide  such  questions  as  they  arise  from  the 
evidence  given  by  scientific  witnesses  and  others  taken  from  the 
arts,  trade,  manufacturing  and  other  business  capable  of  aid- 
ing the  court  in  such  matters.  The  nature  of  the  improve- 
ment if  it  be  a  building,  the  conditions  of  the  country,  the 
intention  and  agreement  of  the  parties,  the  relation  of  the  build- 
ing to  the  land  upon  which  it  stands,  as  to  whether  the  con- 
struction of  the  building  indicates  it  was  intended  for  mov- 
ing or  not;  all  such  facts  and  others  impress  the  court  and 
somewhat  direct  it  fimdings.  So  the  fact  may  be  established 
the  land  belongs  to  one  person  and  the  building  to  another, 
and  these  parties  by  some  agreement  arranged  for  the  moving 
upon  stipulated  notice  or  at  the  end  of  a  certain  term.  Fix- 
tures attached  to  building  permanently  as  a  general  rule  are 
considered  a  part  of  the  realty.  But  where  such  are  found  to 
be  personalty,  the  established  facts  and  the  law  applied  set- 
tle the  question.  These  cases  relating  to  fixtures  often  arise  be- 
tween vendor  and  mortgagor  and  vendee  and  mortgagee,  and 
may  or  may  not  be  under  the  supervision  and  management  of 
an  administrator  or  executor.  But  where  they  are  a  part  of 
a  decedent's  estate  they  must  like  all  other  property,  be  regu- 

24 — Alwood  V.  Buckman,  21  111.     Cheney  v.  Roodhouse,  32  111.  App. 
200;  Creel  v.  Klrkham,  47  111.  345;     49. 


INVENTORIES   AND   APPRAISEMENTS.  381 

larly  inventoried  and  accounted  for  as  cither  real  or  personal 
property  of  the  deceased.^s 

454.  Supplemental  inventory.  Section  52  of  the  Adminis- 
tration act  provides:  "If,  after  making  the  first  inventory, 
any  real  or  personal  estate  of  the  deceased  comes  to  his  pos- 
session or  knowledge,  he  shall  file  a  similar  additional  inven- 
tory thereof,  "^e 

455.  Warrant  of  appraisal.  Section  53  of  the  Administra- 
tion act  provides:  "On  granting  letters  testamentary,  or  of 
administration,  a  warrant  shall  issue,  under  the  seal  of  the 
county  court,  authorizing  three  persons  of  discretion,  not  re- 
lated to  the  deceased  nor  interested  in  the  administration  of 
the  estate,  to  appraise  the  goods,  chattels  and  personal  estate 
of  the  deceased,  known  to  them  or  to  be  shown  by  the  execu- 
tor or  administrator;  which  warrant  shall  be  in  the  following 
form,  to  wit:"  (form  given)  "And  on  the  death,  refusal  to 
act,  or  neglect  of  any  such  appraiser,  another  may  be  ap- 
pointed in  his  place."-"  The  court  cannot  make  an  appraise- 
ment, that  power  is  conferred  upon  the  statutory  appraisers 
appointed  by  the  court.  But  the  court  may  set  the  appraise- 
ment aside  and  order  a  new  one.^s 

456.  Oath — appraisal.  Section  54  of  the  administration  act 
provides:     "The   appraisers   before   they   proceed   to   the   ap- 

25 — Clark    v.    Burnside,    15    111.  rewritten;    section    52,   ctiapter   3, 

62;   Goff  V.  O'Connor,  16  111.  423;  "Administration  of  Estates,"  Starr 

Palmer    v.     Forbes,    23    111.    301;  &    Curtis    Annotated    Statutes    of 

Moore  v.  Smith,  24  111.,  513;  Smith  Illinois,  Vol.  1,  p.  290;   Kurd's  R. 

V.   Moore,    26    111.,    393;    Dooley   v.  S.  of  111.,  1905,  p.  114. 
Crist,  25  111.,  551;  Ogden  v.  Stock,        27— Section  53,  chapter  3,  "Ad- 

34   111.,  522;    Kelley  v.  Austin,  46  ministration  of  Estates,"   Starr  & 

111.,  159;  Matson  v.  Griffin,  78  111.  Curtis  Annotated  Statutes  of  lUi- 

479;    Arnold    v.    Crowder,    81    111.  nois,   with    Jones    &    Addington's 

58;  Chapman  v.  U.  L.  I.  Co.,  4  111.  Supplements   thereto.       Vol.    1,    p. 

App.  35;  Chitty  on  Contracts,  316;  291;   Vol.  4,  p.  35,  and  cases  cited 

Taylor's  Landlord  and  Tenant,  sec.  under   section   of   statute   in   each 

544,  and  cases  cited.  volume:   Kurd's  R.  S.  of  111.,  1905, 

26— R.   S.   1845,   p.   555,   sec.   86,  p.  114. 

28— Miller  v.  Miller,  82  111.  463. 


382  THE    LAW    OF    ESTATES. 

praisement  of  the  estate,  shall  take  and  subscribe  the  follow- 
ing oath,  (or  affirmation),  to  be  annexed  or  endorsed  on  the 
said  warrant,  before  any  person  authorized  to  administer  an 
oath,  viz:  (oath  set  forth).  After  which,  the  said  appraisers 
shall  proceed,  as  soon  as  conveniently  may  be,  to  the  discharge 
of  their  duty,  and  shall  set  down  each  article,  with  the  value 
thereof  in  dollars  and  cents,  as  aforesaid.  All  the  valuations 
shall  be  set  down  on  the  right  hand  side  of  the  paper,  in  one 
or  more  columns,  in  figures,  opposite  to  the  respective  arti- 
cles of  property,  and  the  contents  of  each  column  shall  be 
cast  up  and  set  at  the  foot  of  the  respective  columns."-^ 

457.  Return  of  appraisal.  Section  55  of  the  Administration 
act  provides:  "When  the  bill  of  appraisement  is  completed, 
the  appraisers  shall  certify  the  same  under  their  hands  and 
seals,  and  shall  deliver  the  same  into  the  hands  of  the  executor 
or  administrator,  to  be  by  him  returned  into  the  office  of  the 
clerk  of  the  county  court,  within  three  months  from  the  date 
of  his  lettei's."3o 

458.  Inventories,  etc.,  evidence.  Section  56  of  the  Admin- 
istration act  provides:  "Inventories  and  bills  of  appraise- 
ment and  authenticated  copies  thereof,  may  be  given  in  evi- 
dence in  any  suit  by  or  against  the  executor  or  administrator, 
but  shall  not  be  conclusive  for  or  against  him,  if  any  other 
testimony  be  given  that  the  estate  was  really  worth,  or  was 
bona  fide  sold  for  more  or  less  than  the  appraised  value 
thereof.  "31 

459.  Further  appraisal.  Section  57  of  the  Administration 
act  provides:    "Whenever  personal  property  of  any  kind,  or 

29— R.   S.  1845,  p.  554,  sec.   83;  tated  Statutes   of   Illinois,  Vol.   1, 

sec.  54,  chapter  3,  "Administration  p.    291;    Kurd's   R.    S.   of   Illinois, 

of  Estates,"  Starr  &  Curtis  Anno-  1905,  p.  114. 

tated   Statutes   of  Illinois,   Vol.   1,  31— R.   S.   1845,  p.  555,   sec.  85; 

p.  291;   Kurd's    R.  S.  of  111.,  1905,  sec.  56,  chapter  3,  "Administration 

p.  114.  of  Estates,"  Starr  &  Curtis  Anno- 

30— R.  S.   1845,  p.  554,  sec.  84;  tated    Statutes   of  Illinois,   Vol.   1, 

sec.  55,  chapter  3,  "Administration  p.  291;  Kurd's  R.  S.  of  111.,  1905,  p. 

of  Estates,"  Starr  &  Curtis  Anno-  114. 


INVENTORIES   AND  APPRAISEMENTS.  383 

assets,  shall  come  to  the  possession  or  knowledge  of  any  exe- 
cutor or  administrator,  which  are  not  included  in  the  first 
bill  of  appraisement  as  aforesaid,  the  same  shall  be  appraised, 
and  return  thereof  made  to  the  oflSce  of  the  clerk  of  the  county 
court  in  like  manner  within  three  months  after  discovery  of 
the  same.  "32 

460.  Liabilities  of  executors  and  administrators,  etc.  Sec- 
tion 58  of  the  Administration  act  provides:  "Executors  and 
administrators  shall  be  chargeable  with  so  much  of  the  estate 
of  the  decedent,  personal  or  real,  as  they,  after  due  and  proper 
diligence,  might  or  shall  receive.  "^^ 

461.  Compensation.  Section  59  of  the  Administration  act 
provides:  -  "Every  appraiser  appointed  under  this  act  shall 
be  entitled  to  the  sum  of  $2  per  day  for  each  day's  neces- 
sary attendance  in  making  all  such  appraisements,  to  be  al- 
lowed by  the  county  court,  and  paid  upon  its  order  by  the 
executor  or  administrator.  "^'^  Executore  and  administrators 
are  liable  for  lack  of  ordinary  care  in  collection  of  debts  due 
estate.35  And  they  are  liable  to  stranger  for  fraudulent  act 
of  their  agents.^^  They  must  account  for  all  profits  where 
funds  of  estate  are  used.^'^ 

462.  When  assets  do  not  exceed  widow's  allowance — ^new 
assets.     This  section  is  intended  to  be  a  part  of  Section  59  of 

32— R.   S.   1845,  p.  555,  sec,  86;  tated    Statutes    of     Illinois,     with 

sec.  57,  chapter  3,  "Administration  Jones  &  Addington's    Supplements 

of  Estates,"  Starr  &  Curtis  Anno-  thereto.  Vol.  1,  p.  292;   Vol.   4,  p. 

tated   Statutes  of  Illinois,  Vol.   1,  39,  Hurd's  R.  S.  of  111.,  1905,  pp. 

p.  292;   Hurd's  R.  S.  of  111.,  1905,  114,  115. 

P-  ^^^-  35— Whitney     v.     Peddicord,    63 

33-R.   S.  1845,  p.   556,   sec.  92;  jj,    249.   Borders  v.  People,  31  111. 

sec.    58,    chapter    3,    "Administra-  .          .„„ 
tion  of  Estates,"  Starr    &    Curtis 

Annotated     Statutes     of     Illinois,  36— Mungate  v.  Reynolds,  72  111. 


292,  and  cases  cited;  Hurd's  R.  S. 


425. 


of  III.,  1905,  p.  114.  37— Wingate  v.  Pool,  25  111.  118; 

34— R.   S.   1845,  p.  555,  sec.  87;  Whitney  v.  Peddicord,  63  111.  249; 

sec.  59,  chapter  3,  "Administration  Goeppner    v.    Leitzelman,     98     111. 

of  Estates,"  Starr  &  Curtis  Anno-  409;   the  latter  case,  being  where 


384  THE    LAW    OF   ESTATES. 

the  administration  act  and  is  as  follows:  "If  the  adminis- 
trator or  executor  of  an  estate  discovei-s,  at  any  time  after 
an  inventory  and  appraisement  of  the  property  is  made,  that 
the  personal  property  and  assets  of  the  estate  do  not  exceed 
the  amount  of  the  widow's  allowance,  after  deducting  the 
necessary  expenses  incurred,  such  administrator  or  executor 
shall  report  the  facts  to  the  court,  and  if  the  court  finds  the 
report  to  be  true,  he  shall  order  said  property  and  assets  to 
be  delivered  to  the  widow  by  the  administrator  or  executor, 
and  discharge  the  executor  or  administrator  from  further 
duty;  but  such  executor  or  administrator  shall  first  pay  out 
of  the  property  and  assets  the  cost  and  expense  of  adminis- 
tration. After  the  court  orders  the  delivery  of  such  property 
and  assets  to  the  widow,  the  clerk  of  said  court  shall  make 
and  deliver  to  her  a  certified  copy  of  the  order,  under  seal, 
which  shall  vest  her  with  complete  title  to  said  property  and 
assets,  and  enable  her  to  sue  for  and  recover  the  same  in  her 
own  name  and  for  her  own  use.  Such  widow  shall  not  be 
liable  for  any  of  decedent's  debts  or  liabilities,  excepting  the 
funeral  expenses  of  the  deceased.  If,  upon  affidavit  being  filed 
with  the  clerk  of  said  court,  that  such  administrator  or  execu- 
tor fails  or  refuses  to  report  in  any  case  provided  for  in  this 
section,  the  court  may  order  a  citation  and  attachment  to  is- 
sue as  in  other  eases  of  a  failure  of  administrators  to  report. 
And  on  a  discovery  of  new  assets,  administration  may  be 
granted  as  in  other  cases,  and  charged  to  the  account  of  the 
estate.  "38 

the  administrator  collected  rents,  tration  of  Estates,"  Starr  &  Cur- 
and  was  charged  with  the  same.  tis  Annotated  Statutes  of  Illinois, 
38 — This  section,  though  sepa-  with  Jones  &  Addington's  Supple- 
rated  from  is  undoubtedly  a  part  ments  thereto.  Vol.  1,  pp.  310, 
of  section  59,  chapter  3,  "Admin-  312;  Vol.  i,  pp.  38,  39;  Vol.  5,  p. 
istration  of  Estates,"  Starr  &  Cur-  19,  and  cases  cited  under  sections 
tis  Annotated  Statutes  of  Illinois,  of  statute  in  each  volume;  Hiird's 
Vol.  1,  pp.  292,  293  and  ca.ses  cited  R.  S.  of  111.,  1905,  p.  117;  Wood  v. 
under  section.  Kurd's  R.  S.  of  111.,  Johnson,  13  111.  App.  548;  Little 
1905,  pp.  114,  115.  See  also  sec-  v.  Williams,  7  111.  App.  67;  Brown 
tions  74,  75,  chapter  3,  "Adminis-  v.  Morgan,  84  111.  App.  233. 


CHAPTER  XXIII 


CLAIMS  AGAINST  ESTATES 


Sec 

Sec. 

463. 

Claims    against    estates,    no- 

477. 

tice,  adjustment. 

478. 

464. 

The  filing  of  claims,  time,  ef- 

fect. 

479. 

465. 

Written     pleadings     not     re- 

480. 

quired   in   probate  court  or 

481. 

on  appeal  to  circuit  court. 

466. 

Probate    and    County    courts, 
in  such  matters  have  equit- 
able powers. 

482. 

467. 

Admissions  by  an  executor  or 
administrator    cannot    bind 
estate. 

483. 

468. 

Allowance  of  claim  effect. 

469. 

Heirs'  right  to  contest  claim. 

484. 

470. 

Judgment    recovered    in    an- 
other State,  effect  of. 

471. 

Execution   should   not   be   or- 
dered   against    executor    or 

485. 

administrator. 

486. 

472. 

A    citizen    of    another    State 
may    proceed     to     establish 

487. 

debt    against    an    estate    In 

488. 

the  Federal  court. 

473. 

Claims   afterwards  presented, 
process. 

489. 

474. 

Service,   continuance. 

475. 

Trial  costs. 

476. 

Oath  of  claimant  may  be  re- 

quired. 

490. 

Evidence. 

Demands  against  claimant — 
set  off. 

Claims  not  due. 

Appeals. 

When  judge  interested  or  a 
witness. 

Demands  classified,  as  to 
classes  or  claims,  limita- 
tions. 

Adjudication  and  judgment, 
effect  of  as  between  claim- 
ant and  representative  as  to 
personal  estate. 

Reason  why  allowance  of 
claim  is  conclusive  against 
personal  estate. 

Where  the  deceased  has  re- 
ceived money  in  trust. 

Priority  of  payment. 

Demands  or  claims  of  execu- 
tor or  administrator. 

Entries,  classing,  payment  be- 
fore allowance,  effect. 

Expense  incurred  by  execu- 
tor or  administrator  in 
erecting  head  stone  at  grave 
of  deceased,  considered 
proper. 

Partnership  claim. 


Sec.  463.  Claims  ag-ainst  estates,  notice — adjustment.  "Every 
administrator    or    executor    shall    fix    upon    a    term    of    the 
court   within   six   months    from   the   time   of  his   being:   quali- 
fied as  such  administrator  or  executor,  for  the  adjustment  of 
25  385 


386  THE    LAW    OF   ESTATES. 

all  claims  against  such  decedent,  and  shall  publish  a  notice 
thereof  for  three  successive  weeks  in  some  public  newspaper 
published  in  the  county,  or  if  no  newspaper  is  published  in  the 
county,  then  in  the  nearest  newspaper  in  this  state,  and  also  by 
putting  up  a  written  or  printed  notice  on  the  door  of  the  court 
house,  and  in  five  of  the  most  public  places  in  the  county,  notify- 
ing and  requesting  all  persons  having  claims  against  such  estate, 
to  attend  at  said  term  of  court  for  the  purpose  of  having  the 
same  adjusted  (the  first  publication  of  said  notice  to  be  given 
at  least  six  weeks  previous  to  said  term)  when  and  where 
such  claimant  shall  produce  his  claim  in  writing;  and  if  no 
objection  is  made  to  said  claim,  by  the  executor,  administra- 
tor, widow,  heirs,  or  others  interested  in  said  estate,  and  the 
claimant  swears,  that  such  claim  is  just  and  unpaid,  after  al- 
lowing all  just  credits,  the  court  may  allow  such  claim  with- 
out further  evidence,  but  if  objection  is  made  to  such  claim 
the  same  shall  not  be  allowed  without  other  sufficient  evidence. 
The  court  may  allow  either  party  further  time  to  produce  evi- 
dence in  his  favor,  and  the  case  shall  be  tried  and  determined 
as  other  suits  at  law.  Either  party  may  demand  a  jury  of 
either  six  or  twelve  men  to  try  the  issue,  and  it  shall  be  the 
duty  of  the  county  clerk,  when  a  jury  is  demanded,  to  issue  a 
venire  to  the  sheriff  of  the  county  to  summon  a  jury,  to  be  com- 
posed of  the  number  demanded.  "^ 

1— Section    60,   Chapter  3,   "Ad-  -  (2)    See  also   sections   36,   37,   39, 

ministration      of       Estates,"       as  chapter    77,    entitled     "Judgments 

amended  by  act  of  May  21,  1887.  and    Decrees."     Vol.   2,    pp.    2370, 

In  force  July  1,  1887.     See  R.  S.  2371,   and   cases   cited;    Vol.   4,  p. 

of  1845,  p.  556,  sec.   95;    Laws  of  754,   and   cases   cited;     Vol.    5,  p. 

1859,  p.  95.  sec.  12;  Laws  1887,  p.  334;   Kurd's  R.  S.  of  111.,  1905,  p. 

1,  sec.  60;    Starr  &    Curtis    Anno-  1258.    (3)    See  also  sections  10  to 

tated    Statutes    of     Illinois,     with  13,  chapter  1,  "Abatement,"  Starr 

Jones  &  Addington's    Supplements  &  Curtis  Annotated  Statutes,  etc., 

thereto.     Vol.  1,  p.  293,  and  cases  Vol.   1,   pp.   247   to   254   and   cases 

cited     under     section    of    statute;  cited;    Vol.   4,  pp.  25,  26,   27,   and 

Vol.  4,  pp.  35,  40  and  cases  cited;  cases  cited;    Kurd's  R.   S.   of  111., 

Vol.   5,    p.  17     and     cases    cited;  1905,    pp.    97,   98.     Smith    v.    Mc- 

Hurd's  R.  S.   of  111.,   1905,   p.   115.  Laughlin,   77   111.   596. 


CLAIMS  AGAINST  ESTATES.  387 

464.  The  filing  of  claims — time — effect.  Claims  against 
estates  under  statute  must  be  presented  in  the  manner  pointed 
out  by  the  statute.^  Delay  in  presenting  claim  will  always  be 
considered  by  the  court.  The  delay  in  presenting  the  claim 
was  regarded  as  so  important  a  circumstance  for  the  considera- 
tion of  the  juiy  in  determining  whether  the  claim  ought  to  be 
paid,  that  a  modification  by  the  court  below  of  an  instruction 
asked  on  behalf  of  the  estate,  which  would  be  likely  to  exclude 
the  consideration  by  the  jury  of  that  circumstance,  was  held 
to  be  ground  for  reversal  of  the  judgment  allowing  the  claim.^ 
Where  a  claim  was  presented  after  the  lapse  of  two  years  from 
the  time  of  publication  of  notice  to  present  claims  and  of  the 
granting  of  letters  of  administration,  by  the  express  terms  of 
the  statute,  claims  not  filed  against  an  estate  and  exhibited  to 
the  court  within  two  years  (the  statute  being  now  one  year) 
were  barred  as  to  any  dividend,  except  as  to  subsequently  dis- 
covered assets  not  inventoried  or  accounted  for.*  Section  60  of 
the  administration  act  and  that  of  section  2  of  the  assignment 
act,  relating  to  voluntary  assignments  was  construed  as  similar 
in  intent  and  meaning,  it  is  held  that  claims  against  an  estate 
which  have  been  assigned  for  the  benefit  of  creditors,  whether 
due  or  to  become  due,  must  be  presented  within  three  months 
of  the  time  of  publication  of  notice,  as  provided  for  in  that  act, 
or  the  same  cannot  participate  in  dividends  until  after  the  pay- 
ment of  all  claims  presented  within  that  time  and  allowed  by 
the  court.^  If  a  different  rule  should  be  applied,  then  in  con- 
tingent claims  like  this,  where  years  might  elapse  before  the 
amount  of  the  claim  was  determined  as  against  the  creditor,  to 
allow  petition  to  stay  dividends  would  render  the  settlement  of 
insolvent  estates  the  work  of  years,  instead  of  being  determined 

2— Windslow  v.  Leland,  128  111.  Land  and  Cattle  Co.,  154  111.  220. 

304.  4— O'Connor  v.  O'Connor,  52  111. 

3— O'Connor  v.  O'Connor,  52  111.  316. 

316;   and  see  the  following  cases  5 — Rassieur  v.  Jenkins,  170  111. 

aflBrming    the    law     in     O'Connor  503.     See  note  1    (Ante  463),  sec. 

case:       Stone    v.    Clark's    Admrs.,  2,    chap.    10,    "Assignment    Act," 

40   111.   411;    Snydacker    v.    Swan  Kurd's  R.  S.  of  111.  1905,  p.  172. 


388  THE    LAW   OF   ESTATES. 

with  dispatcK,  as  was  the  evident  intent  of  the  act.  Claimant's 
recovery  is  limited  to  amount  of  claim  filed;  the  order  of  pro- 
bate or  county  court  allowing  a  claim  is  a  judgment  of  that 
court  bearing  interest  at  legal  statutory  rate.®  A  claim  once 
filed  and  dropped  from  docket,  without  order  disposing  of  it, 
may  be  re-docketed  on  notice  to  executor  or  administrator.'^ 
However  large  the  claim  may  be  the  probate  or  county  court 
has  jurisdiction  to  adjudicate  it.^  In  Colorado,  where  claim 
was  presented  after  the  statutory  period  of  two  years,  it  was 
held  error, to  permit  such  claim  to  be  amended.^ 

465.  Written  pleadings  not  required  in  Probate  Court  or 
on  appeal  to  Circuit  Court.  The  pleadings  of  a  claimant  in  a 
proceeding  in  the  probate  court  for  a  judgment  against  an 
estate  is  the  claim  prepared  in  accordance  with  the  provisions 
of  section  60  of  Chapter  3,  entitled  "  Administration.  "^^  Plead- 
ing is  a  statement,  in  the  legal  form,  of  the  facts  which  consti- 
tute the  plaintiff's  cause  of  action  or  the  defendant's  ground  of 
defense.^  1  The  amount  set  forth  as  the  alleged  indebtedness  in 
a  claim  filed  against  an  estate  should  be  given  like  effect  as  an 
ad  damnum  in  a  declaration,  and  that  the  amount  of  recovery 
should  be  limited  accordingly.  Affidavit  of  amount  due  is  essen- 
tial to  a  proper  or  valid  presentation  of  claim  under  statute.^  ^ 
But  the  general  rule  applicable  to  the  probate  and  county 
courts,  and  on  appeals  therefrom  to  the  circuit  court  in  the 
matter  of  the  trial  of  claims,  is  to  the  effect,  that  written  plead- 
ings are  improper  or  are  not  required;  the  rules  of  practice  of 
such  courts  and  the  decisions  so  hold.^^     It  is  held  to  be  the 

6— Russell    V.    Hubbard,    59    111.        10— Hall   v.    Hale,   202   111.   328; 
325;   Mitchell  v.  Mayo,  16  111.  83;     see  Statute  citation  1,  ante  463. 
Wheeler  v.  Dawson,  63  111,  54.  11—22,    Am.    &    Eng.    Ency.    of 

7-McCall  V.  Lee,  120  111.  261.  ^^^'   ^^  ^^'   ^^^'  ^""^  ""^^^^  ""'^^^ 

in  notes. 

8— Manna  v.  Yocum,  17  111.  387;  12— Russell  v.  Hubbard,  59  HI. 
Tewalt  V.   Irwin,   164  111.  596.  335;  smith  v.  Goodrich,  167  111.51. 

9— Dickey  v.  Dickey,  8  Colo.  Ct.  13— Thorp  v.  Goewery,  85  111. 
of  App.  141.  611;    Thompson  v.   Black,  200   111. 

469. 


CLAIMS   AGAINST  ESTATES.  389 

duty  of  the  legal  representatives  of  an  estate,  on  the  trial  of 
claims  against  estate,  to  interpose  the  statutes  of  limitation 
against  any  claim  or  demand  where  such  is  a  defense.  But  if 
the  executor  or  administrator  fail  so  to  do,  the  heirs,  devisees, 
purchasers  or  those  interested  may  interpose  the  limitation  act.^* 

466.  Probate  and  County  Courts  in  such  matters  have 
equitable  powers.  In  the  matter  of  hearing  and  adjudication 
of  claims  the  probate  and  county  courts  have  equitable  jurisdic- 
tion and  such  power  is  specially  conferred  upon  such  courts  in 
the  matter  of  adjudicating  claims  against  estates,  it  is  conferred 
so  that  such  courts  may  do  full  justice  between  the  parties  and 
adopt  when  necessary,  chancery  procedure.^  ^ 

467.  Admissions  by  an  administrator  or  executor  cannot 
bind  estate.  Such  legal  representatives  of  an  estate  cannot 
bind  an  estate  by  their  admissions  of  a  claim.^^  Nor  can  they 
submit  claim  to  arbitration  and  bind  estate.^'^  A  court  of 
chancery  in  a  proper  proceeding  will  set  aside  a  claim  obtained 
by  fraudulent  collusion  between  claimant  and  executor  or 
administrator.^^ 

468.  Allowance  of  claim  effect  of.  The  allowance  of  a  claim 
as  against  the  personal  estate  is  conclusive  until  reversed  by 
a  superior  tribunal,  or  unless  impeached  for  fraud,  accident  or 
mistake.i^  But  so  far  as  real  estate  is  concerned,  the  allow- 
ance of  a  claim  is  merely  pritna  facie  evidence  of  the  debt  due 
by  the  estate.-^    And  it  must  be  remembered  that  the  probate 

14— McCoy    v.    Morrow,    18    111.  17— Retzell  v.  Miller,  25  111.  67; 

519.  Clark  v.  Mogle,  52  111.  427. 

15— In  re  Estate  of  Steel,  65  III.  18— Elting  v.  Bank,  173  111.  391; 
322;  People  v.  Harrison,  82  111.  Strauss  v.  Phillips,  189  111.  578. 
84;  People  v.  Phelps,  78  111.  147;  19— Cook  v.  Wood,  24  111.  295; 
Miller  v.  Simons,  71  111.  App.  379;  Stone  v.  Wood,  16  111.  177;  Gould 
Ingram  v.  Ingram,  172  111.  v.  Bailey,  44  111.  491;  Wheeler  v. 
292;  Henry  v.  Caruthers,  196  111.  Dawson,  63  111.  54;  Ward  v.  Dun- 
131;  Marshall  v.  Marshall,  11  ham,  134  111.  195;  Schlink  v.  Max- 
Colo.  Ct.  of  App.  505.  ton,     153     111.     447;     Sherman    v. 

16— Marshall   v.   Adams,    11   111.  Whiteside,  190  111.  576. 

37.  20— Noe  v.  Moutry,  170  111.  169; 


390  THE    LAW    OF    ESTATES. 

courts  have  such  equitable  jurisdiction  in  the  administration  of 
estates,  that  they  may,  in  a  proper  case,  on  motion,  and  at  a 
subsequent  term,  set  aside  an  order  allowing  a  claim  where 
fraud  or  mistake  has  intervened.21 

469.  Heir's  right  to  contest  claim.  Allowance  of  claim  in 
probate  court  is  not  conclusive  upon  heir,  where  real  estate  is 
sought  to  be  sold;  such  may  contest  when  he  is  sought  to  be 
charged,  and  generally  the  administrator  is  bound  to  protect 
his  interest;  and  if  such  does  not  in  a  proper  proceeding  a 
court  of  chancery  will.^-  An  infant's  right  to  maintain  a 
bill  in  chancery  to  impeach  a  decree  will  arise  when  his  rights 
are  prejudiced  by  the  decree  entered.^^  And  it  is  held  where 
an  offer  is  made  to  indemnify  a  minor  against  loss,  after  re- 
sale of  real  estate  is  ordered,  it  comes  too  late,  even  if  it  could 
have  any  force  whatever,  2^  Heir  cannot  bring  suit  upon  debt 
due  his  ancestor.^s 

470.  Judgment  recovered  in  another  state  effect  of.  A  judg- 
ment recovered  in  another  state  against  administrator  appointed 
in  this  state,  cannot  be  enforced  against  the  estate  here;  and 
such  judgment  is  no  evidence  of  indebtedness  against  another 
administrator  in  another  state.^^ 

471.  Execution  should  not  be  ordered  against  executor  or 
administrator.  A  judgment  of  the  Probate  Court  against  an 
estate  should  be  ordered  paid  in  due  course  of  administration; 
no  execution  should  be  issued  against  representatives  of  estate 
arising  on  judgment  for  claim  allowed.^®*    A  creditor  whose 

Ford  V,  First  National  Bank,  201  23— Johnson   v.    Buck,    220    111. 

Ill,  128,  129,  and  cases  cited.  226. 

21— Sherman   v.   Whiteside,   190  24— Compton   v.   McCaffree,    220 

111.   576;    Elting  v.   Bank,   173   111.  111.  137;   Jolly  v.  Graham,  222  111, 

388;    Strauss  v.    Phillips,   189   111.  550. 

578,  25— Hall   v.   Cowle's   Estate,    15 

22— Motsinger  v.  Coleman,  16  111.  Colo.  343. 

71;  Moline  Water  &  Power  Co.  v.  26— Judy  v.  Kelley,  11  111.  211; 

Webster,    26    111.    233;     Gould    v.  Rosenthal  v.  Renich,  44   111.   202; 

Bailey,    44    111.    491;    Goeppner   v.  Elting  v.  Bank,  173  111.  388. 

Leitzelman,   98   111.   409;    Marshall  26a— Bull  v.  Harris,  31    111.  487; 

V.  Coleman,  187  111.  569.  Welch  v.  Wallace,  8   111.  (3  Gilm.) 


CLAIMS  AGAINST  ESTATES.  391 

claim  is  reduced  to  judgment  acquires  no  lien  on  lands  of 
deceased.27  But  a  mortgage  debt  which  is  a  lien  upon  land 
of  deceased,  and  for  which  estate  of  deceased  is  liable,  may  be 
proved  and  allowed  against  such  estate  the  same  as  any  other 
debt  or  claim.^s  A  grantee  of  land  who  assumes  a  mortgage 
thereon  as  part  of  the  consideration  is  personally  liable  for  the 
mortgage  debt,  including  any  deficiency  upon  foreclosure.  A 
voluntary  conveyance  of  land  by  a  father  to  his  son  vrill  not 
relieve  the  father  or  his  estate  after  his  death,  from  payment 
of  a  mortgage  upon  the  land,  which,  as  grantee  in  a  previous 
conveyance  by  the  son  to  the  father,  the  latter  had  assumed. 
The  son  may  after  father's  death,  on  the  executor's  refusal  to 
pay  the  mortgage  debt,  pay  the  debt  and  charge  the  estate,  and 
such  claim  may  be  proved  and  allowed  against  the  estate,  with- 
out such  claimant  formally  paying  the  debt.^^ 

472.  A  citizen  of  another  state  may  proceed  to  establish  a 
debt  against  an  estate  in  the  Federal  Court.  In  this  work 
Chapter  2,  section  47,  authorities  are  cited  sustaining  this 
right  and  where  the  requisite  diversity  of  citizenship  exists  the 
Federal  court's  jurisdiction  is  indisputable.  We  particularly 
call  attention  to  the  case  of  Byers  v.  McAuley,^^  where  the 
established  rule  of  procedure  in  such  matter  is  at  large  set 
forth,  A  very  able  and  elaborate  exposition  of  the  law  re- 
lating to  the  jurisdiction  of  Federal  courts  over  estates  of 
deceased  persons,  including  suits  by  creditors  of  such,  and  suits 
by  and  against  representatives  of  estates,  legatees,  devisees, 
heirs  and  beneficiaries  of  a  trust  to  enforce  their  rights,  wiU 


490;    People  v.   Allen,   8   111.   App.  Daub  v.  Englebach,   109   111.   267;' 

17;  Bay  v.  Cook,  31  111.  336;  Rus-  Bay     v.     Williams,     112  111.     91; 

sell  V.  Hubbard,  59  111.  335;   Noe  Schmidt    v.    Glade,    126    111.    485; 

V.  Moutray,  170  111.  176.  Fish  v.  Glover,  154  111.  86. 

27 — Stillman   v.    Young,    16    111.  29— Ingram   v.   Ingram,  172  111. 

318;    Winslow   v.    Leland,    128    111.  287,    291,   292. 

S04;  Noe  v.  Moutray,  170  111.  176.  30—149  U.  S.  608. 

28— Dean  V.  Walker,  107  111.  540; 


392  THE    LAW   OF   ESTATES. 

be  found  in  Volume  29,  Central  Law  Journal,  pages  145,  166^ 
et  seq.,  by  Russell  H.  Curtis. 

473.  Claims  afterwards  presented — process.  "Whoever  has 
a  claim  against  an  estate,  and  fails  to  present  the  same  for 
adjustment  at  the  term  of  court  selected  by  the  executor  or 
administrator,  may  file  a  copy  thereof  with  the  clerk  of  the 
court;  whereupon,  unless  the  executor  or  administrator  will 
waive  the  issuing  of  process,  the  clerk  shall  issue  a  summons, 
directed  to  the  sheriff  of  the  county,  requiring  such  executor  or 
administrator  to  appear  and  defend  such  claim  at  a  term  of 
the  court  therein  specified,  which  summons,  when  served,  shall 
be  sufficient  notice  to  the  executor  or  administrator  of  the  pres- 
entation of  such  claim.  "31  Under  this  section  of  the  statute 
jurisdiction  is  acquired  by  the  county  or  probate  court,  when 
summons  is  served  on  the  administrator,  or  his  appearance  is 
entered.32  Xnd.  in  order  to  obtain  a  valid  claim,  the  process 
must  issue,  or  the  administrator  or  executor  must  enter  his 
appearance  and  waive  the  process.^s 

474.  Service — continuance.  Section  62  of  the  Administra- 
tion act  provides:  "If  the  summons  is  not  served  ten  days 
before  the  first  day  of  the  term  to  which  it  is  returnable,  the 
cause  shall  be  continued  until  the  next  term  of  the  court, 
unless  the  parties  shall,  by  consent,  proceed  to  trial  at  the 
return  term,  "^  4 

475.  Trial — costs.  Section  63  of  the  Administration  act 
provides:  "Upon  the  trial  of  such  cause,  the  same  proceedings 
may  be  had  as  if  the  claim  had  been  presented  at  the  time  fixed 

31— Section  61,  Chapter  3,  "Ad-  33— Smith  v.   Goodrich,  167   111. 

ministration  of  Estates."     Starr  &  51;  Viskniskii  v.  Bleakiey,  88  111. 

Curtis  Annotated   Statutes  of  Illi-  App.  613. 

nois,  with  Jones  and  Addington's  34 — Laws,  1859,  p.  93,  sec.  3;  Sec- 
Supplements  thereto.  Vol.  1,  p.  298,  tion  62,  Sec.  128;  Chapter  3,  "Ad- 
and  cases  cited;  Vol.  4,  p.  36,  and  ministration  of  Estates."  Starr  & 
cases  cited;  Kurd's  R.  S.  of  111.  Curtis  Annotated  Statutes  of  II- 
1905,  p.  115.  linois,  Vol.  1,  pp.  298,  347;  Kurd's 

32— Hale  v.  Holland,  92  111.  494.  R.  S.  of  111.  1905,  pp.  115,  126. 


CLAIMS  AGAINST  ESTATES.  393 

for  the  adjustment  of  claims  against  the  estate,  but  the  estate 
shall  not  be  answerable  for  the  costs  of  such  proceedings:  Pro- 
vided, that  when  defense  is  made  the  court  may,  if  it  shall 
deem  just,  order  the  whole  or  some  part  of  the  costs  occasioned 
by  such  defense,  to  be  paid  out  of  the  estate."*''  The  whole 
question  of  costs  in  courts  of  law  is  regulated  and  governed 
by  statute.  But  since  costs  were  given  by  statute,  the  form  of 
the  pleadings  has  remained  the  same  as  at  common  law;  courts 
treat  costs  as  incident  to  the  judgment  in  the  case,  and  have 
given  them,  when  authorized  by  the  statute,  without  reference 
to  the  form  of  pleadings.  To  recover  costs  in  an  action  against 
an  executor  or  administrator,  there  should  be  proof  of  a  com- 
pliance with  the  requisitions  of  the  statute  in  that  regard.  If 
an  administrator  is  sued,  he  can  plead  and  rely  upon  the 
statute.36 

476.  Oath  of  claimant  may  be  required.  Section  64  of  the 
Administration  act  provides:  "The  court  may,  in  its  discretion 
in  any  case,  before  giving  judgment  against  any  executor  or 
administrator,  require  the  claimant  to  make  oath  that  such 
claim  is  just  and  unpaid:  Provided,  that  the  amount  of  such 
judgment  shall  not  in  such  case  be  increased  upon  the  testimony 
of  the  claimant.*'' 

477.  Evidence.  Section  65  of  the  Administration  act  pro- 
vides :  "A  judgment  regularly  obtained,  or  a  copy  thereof  duly 
certified  and  filed  with  the  court,  shall  be  taken  as  duly  proven ; 
and  all  instruments  in  writing,  signed  by  the  testator  or  intes- 
tate, if  the  handwriting  is  proven  and  nothing  is  shown  to  the 

35— Section  63,  Chapter  3,  "Ad-  101  111.  370;   Welch  v.  Wallace,  8 

ministration  of  Estates."     Starr  &  111.    (3   Gilm.)    490. 

Curtis  Annotated  Statutes  of  Illi-  37— R.  S.  1845,  p.  561,  sec.  119; 

nois,  Vol  1,  pp.  298,  299,  and  cases  Section   64,   Chapter   3,   "Adminis- 

cited;  Kurd's  R.  S.  of  111.,  1905,  p.  tration  of  Estates."     Starr  &  Cur- 

115.  tis  Annotated  Statutes  of  Illinois, 

36— Granjang  v.   Merkle.   22   111.  Vol  1,  p.  299;   Kurd's  R.  S.  of  111. 

250.     See  also  Russell  v.  Hubbard,  1905,   p.   115. 
59  111.  335;   Darling  v.  McDonald, 


394  THE    LAW    OF    ESTATES. 

contrary,  shall  be  deemed  duly  proved.  "^^  This  section  of  the 
statute  is  declared  a  rule  of  evidence  in  regard  to  judgments 
already  obtained  against  estates.^''  That  the  county  court 
should  be  advised  of  the  existence,  and  in  some  way  have  before 
it  evidence  of  the  nature  and  amount  of  all  the  judgments 
against  the  executor  or  administrator  which  bind  the  estate, 
otherwise  it  could  never  know  whether  the  estate  was  settled  or 
not,  and  could  not  intelligently  pass  upon  the  accounts  of  the 
executor  or  administrator.  This  section  has  nothing  to  do  with 
allowing  claims  or  taking  judgments  against  estates.'*^  Authen- 
ticated copies  of  a  foreign  record  under  this  statute,  should  be 
presented  as  required  by  act  of  Congress,  to  be  admissible  as 
proof.^i  See  also  effect  of  judgment  against  administrator  in 
another  state  of  the  same  decedent. "^^     Judgment  revived  by 

scire-facias  should  direct  payment  in  due  cause  of  administra- 
tion.^^ 

478.  Demand  against  claimant — set-off.  Section  66  of  the 
Administration  act  provides:  "When  a  claim  is  filed,  or  suit 
brought,  against  an  executor  or  administrator,  and  it  appears 
on  trial  that  such  claimant  or  plaintiff  is  indebted  to  such 
executor  or  administrator,  the  court  may  give  judgment  there- 
for, and  execution  may  issue  thereon  in  favor  of  the  executor 
or  administrator.""**  In  a  proceeding  or  suit  at  law  by  an 
executor  or  administrator,  on  demand  accruing  to  such  repre- 
sentative after  his  decedent's  death,  the  defendant  cannot  off- 
set a  debt  due  from  decedent  when  alive.^^    But  in  a  proceed- 

38— Section  65,  Chapter  3,  "Ad-  42— Rosenthal  v.  Renick,  44  111, 

ministration  of  Estates."     Starr  &  202. 

Curtis  Annotated  Statutes  of  Illi-  43 — Kirkpatrick     v.     Haley,     14 

nois.    Vol.    1,    p.    299,    and    cases  Colo.  Ct  of  App.  399. 

cited;  Kurd's  R.  S.  of  111.  1905,  p.  44— Section  66.  Chapter  3,  "Ad- 

115.  ministration  of  Estates."     Starr  & 

39 — Darling    v.    McDonald,    101  Curtis  Annotated  Statutes  of  lUi- 

111.  370,  380.  nois.  Vol.  1,  pp.  299,  300,  and  cases 

40— Darling    v.    McDonald,    101  cited;   Kurd's  R.  S.  of  111.  116. 

111.   370-381.  45— Harding  v.  Shepard,  107  111. 

41— Baker  v.  Brown,  18  111.  91.  264;    Newhall    v.    Turney,    14    m. 

338. 


CLAIMS   AGAINST  ESTATES.  395 

ing  in  chancery,  where  a  purchaser  of  land  gave  his  notes  for 
a  portion  of  the  purchase  money,  and  simultaneously  therewith, 
as  a  part  of  the  same  transaction,  the  grantor  executed  to  the 
purchaser  a  bond  to  indemnify  and  save  him  harmless,  as 
against  certain  outstanding  notes  given  bj''  him  upon  a  prior 
purchase  of  the  same  premises  from  a  third  party  who  had 
bought  from  the  same  grantor,  but  had  forfeited  his  contract 
and  after  the  death  of  the  grantor,  the  party  thus  sought  to  be 
indemnified  was  compelled  to  pay  those  outstanding  notes.  It 
was  held,  that  in  equity,  the  party  so  damnified  could  set  off 
the  sum  paid  by  him,  against  his  notes  due  to  the  estate  of  his 
grantor,  it  appearing  the  estate  was  solvent  and  the  interest 
of  other  creditors  would  not  be  affected  thereby.  And  such  was 
held  notwithstanding  the  breach  of  such  indemnifying  bond  did 
not  occur  until  after  the  vendor's  death.^*^  The  same  doctrine 
is  applied  where  the  case  originated  in  the  county  court  and 
went  on  appeal  to  the  circuit  and  supreme  courts.^ '^  Where 
administrator  sells  goods  of  an  estate  and  warrants  the  same, 
the  breach  of  warranty  may  be  shown  as  defense  to  notes  given 
the  administrator  for  goods  sold  and  warranted."*^  But  sur- 
viving partner  was  not  allowed  to  have  his  individual  claim 
set  off  against  a  claim  for  firm  assets  in  his  hands.^^ 

479.  Claims  not  due.  Section  67  of  the  Administration  act 
provides :  ' '  Any  creditor,  whose  debt  or  claim  against  the  estate 
is  not  due,  may,  nevertheless,  present  the  same  for  allowance 
and  settlement,  and  shall,  thereupon,  be  considered  as  a  creditor 
under  this  act,  and  shall  receive  a  dividend  of  the  said  dece- 
dent's estate  after  deducting  a  rebate  of  interest  for  what  he 
shall  receive  on  such  debt,  to  be  computed  from  the  time  of 
the  allowance  thereof  to  the  time  such  debt  would  have  become 
due,  according  to  the  tenor  and  effect  of  the  contract. '  '^^  Under 

46— Stone  v.  Fargo,  55  111.  71.  49— Berry  v.  Powell,  18  111.  98; 

47 — Mack    v.    Woodruff,    87    111.  and  see  Maloney  v.  Scanlon,  53  111. 

570.     This   case    applies   the   doc-  122;   Peacock  v.  Haven,  22  111.  23. 

trine  in  Stone  v.  Fargo,  supra.  50 — R.  S.  1845,  p.  558,  sec.  100; 

48— Welch  V.  Hoyt,  24  111.  117.  Section   67,    chapter    3,    "Adminis- 


396  THE    LAW    OF   ESTATES. 

this  section  of  the  statute  the  endorsee  of  notes  not  yet  due, 
where  the  liability  of  the  endorser  was  absolute  and  not  de- 
pendent upon  any  conditions,  it  was  held,  the  claimant  the 
endorsee  may  have  the  amount  of  the  notes  allowed  as  a  claim 
against  the  estate  of  the  endorser,  after  allowing  the  estate  the 
proper  rebate  of  interest;  the  endorsee  being  in  that  case 
deemed  and  considered  a  creditor  of  the  estate  within  the  mean- 
ing of  the  statute.^^  And.  where  the  claim  filed  against  an 
estate  is  absolute,  though  not  due,  and  founded  upon  note  or 
other  document  or  evidence  of  indebtedness,  or  whether  joint 
or  several  in  its  nature,  and  there  is  no  contingent  conditions 
the  statute  applies.^^ 

480.  Appeals.  Section  68  of  the  Administration  act  pro- 
vides: "In  all  cases  of  the  allowance  or  rejection  of  claims  by 
the  county  court,  as  provided  in  this  act,  either  party  may 
take  an  appeal  from  the  decision  rendered  to  the  circuit  court 
of  the  same  county,  in  the  same  time  and  manner  appeals  are 
now  taken  from  justices  of  the  peace  to  the  circuit  courts,  by 
appellant  giving  good  and  sufficient  bond,  with  security,  to  be 
approved  by  the  county  judge ;  and  such  appeals  shall  be  tried 
de  novo  in  the  circuit  court.  "^^  Under  section  68  of  the  admin- 
istration act,  providing  for  appeals  from  orders  of  the  county 
court  rejecting  or  allowing  claims  against  estates  to  the  circuit 
court,  the  section  applies  and  refers  to  appeals  only,  and  does 
not  authorize  the  circuit  court  to  issue  a  writ  of  certiorari  to  the 
county  court  in  such  case.^* 

tration  of  Estates."  Starr  &  Cur-  70.  See  Section  10,  Chapter  72, 
tis  Annotated  Statutes  of  Illinois,  "Insolvent  Debtors"  act.  Starr  & 
with  Jones  &  Addington's  Supple-  Curtis  Annotated  Statutes  of  Illi- 
ments  thereto,  Vol.  1,  p.  300,  and  nois,  Vol.  2,  p.  2168. 
cases  cited;  Vol.  4,  p.  36,  and  cases  53 — Section  68,  Chapter  3,  "Ad- 
cited;  Vol.  5,  p.  18,  and  cases  ministration  of  Estates."  Starr 
cited;  Kurd's  R.  S.  of  111.  1905,  p.  &  Curtis  Annotated  Statutes  of  li- 
ne, linois,   with   Jones   &   Addington's 

51 — Dunningan   v.    Stevens,   122  Supplements    thereto,    Vol.    1,    p. 

111.    396.  300;  Vol.  4,  p.  36,  and  cases  cited; 

52— Hall   V.  Moxey,  84   111.   616;  Kurd's  R.  S.  of  111.  1905,  p.  116. 

Wolverton  v.  Taylor,  30  111.  App.  54 — Schaeffer  v.  Burnett,  221  III. 

315. 


CLAIMS  AGAINST  ESTATES.  397 

481.  When  judge  interested  or  a  witness.  Section  69  of  the 
Administration  act  provides :  "In  all  cases  or  matters,  pending 
in  the  county  court,  where  the  judge  of  the  court  shall  be  inter- 
ested in  the  same,  or  is  a  material  or  necessary  witness,  the  case 
shall  be  transmitted  to  the  circuit  court  of  the  proper  county, 
and  there  determined  as  in  the  county  court;  and  the  papers, 
with  the  order  of  judgment  of  the  circuit  court  thereon,  shall 
be  duly  certified  and  filed  in  the  county  court,  and  have  the 
same  effect  as  if  determined  in  the  county  court.  "^•'^  This  sec- 
tion of  the  statute  and  also  the  statute  section  204  of  the  act 
relating  to  courts  cited  are  both  in  force,  and  that  the  act  of 
May  31,  1879,  which  provides  for  the  interchange  of  county 
judges,  does  not  repeal  this  section.^® 

482.  Demands  classified,  as  to  classes  of  claims — limitations. 

Section  70  of  the  Administration  act,  as  amended,  is  as  follows: 
*'A11  demands  against  the  estate  of  any  testator  or  intestate 
shall  be  divided  into  classes  in  manner  following,  to-wit :  First. 
Funeral  expenses  and  necessary  cost  of  administration.  Sec- 
ond. The  widow's  award,  if  there  be  a  widow;  or  children,  if 
there  are  children  and  no  widow.  Third.  Expenses  attending 
last  illness,  not  including  physician's  bill,  and  demands  due 
common  laborers  or  household  servants  of  deceased  for  labor. 
Fourth.  Debts  due  the  common  school  fund  or  township.  Fifth. 
The  physician's  bill  in  the  la.st  illness  of  the  deceased.  Sixth. 
Where  the  deceased  has  received  money  in  trust  for  any  pur- 
pose, his  executor  or  administrator  shall  pay  out  of  his  estate 
the  amount  thus  received  and  not  accounted  for.  Seventh.  All 
of  other  debts  and  demands  of  whatever  kind  without  regard  to 
quality  or  dignity  which  shall  be  exhibited  to  the  court  within 
one  year  from  granting  of  letters  as  aforesaid,  and  all  demands 


55 — Section  69,  Chapter  3,  "Ad-  tion     204,     chapter     37,     pntitled 

ministration  of  Estates."     Starr  &  "Courts."    Kurd's  R.  S.  of  111.  1905, 

Curtis  Annotated   Statutes  of  Illi-  p.   623. 

nois,  Vol.  1,  p.  301;    Kurd's  R.  S.         56— Graham   v.    People,    111    111. 

of  111.  1905,  p.  116.     See  also  sec-  253. 


398  THE    LAW    OF    ESTATES. 

not  exhibited  within  one  year  as  aforesaid  shall  be  forever 
barred  unless  the  creditors  shall  find  other  estate  of  the  de- 
ceased not  inventoried  or  accounted  for  by  the  executor  or  ad- 
ministrator, in  which  case  their  claims  shall  be  paid  pro  rata 
out  of  such  subsequently  discovered  estate,  saving  however,  to 
infants,  persons  of  unsound  mind,  persons  without  the  United 
States,  in  the  employment  of  the  United  States  or  of  this  State, 
the  term  of  one  year  after  their  respective  disabilities  are  re- 
moved to  exhibit  their  claims.  "^^ 

483.  Adjudication  and  judgment — effect  of  as  between 
claimant  and  representative  as  to  personal  estate.  This  section 
of  the  Administration  act,  re-written  and  passed  in  1903,^^ 
made  various  changes  in  the  law  as  it  stood  in  this  respect  prior 
thereto.  The  classification  of  claims  are  changed  somev/hat, 
and  that  part  of  the  section  in  question  fixing  the  period  for 
exhibiting  and  presenting  claims  is  shortened  from  two  to  oiie 
year  from  the  time  of  granting  letters  of  administration.  This 
present  statute  permits  the  settlement  and  distribution  of  es- 
tates in  one-half  the  time  prescribed  by  former  statutes.  The 
allowance  of  a  claim  against  an  estate  by  the  probate  or  county 
court  is  a  judgment  binding  between  the  claimant  and  the 
executor  or  administrator  as  to  the  personal  estate.  The  classifi- 
cation of  the  claim  being  fixed  by  the  statute,  the  adjudication 
and  judgment  by  the  court  indicate  to  what  class  the  claim 
belongs.^^ 

57 — As  amended  by  act  approved  cases   cited;    Kurd's  R    S.  of   IlL 

June    5,    1889.      In    force    July    1,  1905,  p.   116. 

1889.     Amended  again  by  act  ap-  58 — Ante,  482. 

proved    May    15,    1903.      In    force  59— McCall  v.  Lee,  120  111.  261; 

July  1,  1903.     Section  70,  chapter  Bradwell  v.   Wilson,   158    111.   346; 

3,     "Administration     of    Estates."  Darling  v.  McDonald,  101  111.  370; 

Starr  &  Curtis  Annotated  Statutes  Sherman    v.    Whiteside,    190    111. 

of  Illinois,  with  Jones  &  Adding-  576;  Ford  v.  First  National  Bank, 

ton's  Supplements  thereto,  Vol.  1,  201  111.  120;   the  latter  case  hold- 

p.  301,  and  cases  cited  under  sec-  ing  the  classification  is  as  much  a 

tion  of  statute;  Vol.  4,  pp.  37,  38,  part  of   the  judgment  as   that   of 

and  cases  cited;  Vol.  5,  p.  18,  and  allowing  the  claim. 


CLAIMS  AGAINST  ESTATES.  399 

484.  Reason  why  allowance  of  claim  is  conclusive  against 
the  personal  estate.  "Where  the  executor  or  administrator  com- 
plies strictly  with  the  statute,  he  legally  brings  before  the  court 
all  creditors  of  the  estate.  Thus  the  creditor  and  the  repre- 
sentatives of  the  estate  being  in  court  are  parties  to  the  proceed- 
ings of  the  court  for  the  adjustment  of  claims.®'^  The  court 
having  properly  acquired  jurisdiction,  Avill  hear  and  determine 
the  claims  of  creditors;  and  in  such  proceeding  pass  upon  the 
legal  and  equitable  rights  of  all  parties.  The  creditor  having 
presented  and  proved  his  claim,  the  adjudication  of  the  probate 
court  is  final  and  conclusive  upon  him.^^  The  allowance  of  a 
claim  against  an  estate  is  conclusive  against  the  personal  estate, 
because  the  executor  or  administrator  is  before  the  court  and  a 
party  to  its  proceedings.^-  It  being  the  duty  of  the  executor 
or  administrator  to  represent  and  guard  the  interest  of  the 
creditors  of  the  estate,  and  when  a  claim  is  presented  for  allow- 
ance the  law  will  hold  each  and  every  creditor  of  the  estate, 
by  reason  of  privity  of  relation,  to  be  represented  by  the  execu- 
tor or  administrator.^^  <'i^  would  be  an  intolerable  burden  on 
those  who  have  claims  against  an  estate  in  the  hands  of  an 
executor  to  require  the  claimant  to  make  each  of  the  creditors 
a  party.  An  allowance  of  a  claim  against  an  estate  is  a  judg- 
ment conclusive  upon  the  creditors  and  all  other  parties,  so  far 
as  the  personal  estate  is  concerned.  It  is  not  the  purpose  of  the 
law  that  a  claimant  shall  litigate  his  claim  first  with  the  execu- 
tor and  then  with  each  and  every  other  claimant  of  the  estate.  It 
was  contended  by  an  appellee  that  the  probate  court  is  clothed 
with  a  broad  jurisdiction  over  all  probate  matters,  and  may  look 
into  and  correct  the  allowance  of  claims  after  the  term  at  which 

60— Mitchell  v.  Mayo,  16  111.  83;  63—15    Ency.    of    Pleading    and 

Ward    V.    Dunham,    134    111.    195;  Practice,  641;   Dandridge  v.  Wash- 

Noe  V.  Moutray,  170  111.  169.  ington's     Exr's,     2     Peters,     370; 

61— Mitchell  v.  Mayo,  16  111.  83;  Stone  v.  Wood,  16  111.  177;   Ward 

Noe  V.   Moutray,   170   111.   169.  v.   Durham,   134   111.   195;    Ford  v. 

62— Ward  v.  Durham,  134  111.  First  National  Bank,  201  111.  120. 
195. 


400  THE    LAW    OF   ESTATES. 

they  are  allowed.^*  This  is  true  as  between  the  creditor  and 
the  heirs-at-law  upon  a  petition  filed  for  the  sale  of  real  estate 
to  pay  debts;  but  a  distinction  is  to  be  made  of  the  effect  of  the 
allowance  of  a  claim  as  to  an  heir  and  as  to  a  creditor  or 
legatee.^'^  So  far  as  real  estate  is  concerned,  the  allowance  of 
a  claim  against  an  estate  is  merely  prima  facie  evidence  of  the 
debt  due  by  the  estate.*'^^  But  as  against  the  personal  estate  an 
allowance  of  a  claim  is  conclusive  until  reversed  by  a  superior 
tribunal,  unless  impeached  for  fraud,  accident  or  mistake.^'^ 

485.    Where  the  deceased  has  received  money  in  trust.    It 

was  undoubtedly  the  intention  of  the  legislature,  when  it  en- 
acted and  passed  the  statutes  relating  to  claims  against  estates, 
to  confer  special  law  and  chancery  jurisdiction  relating  to  such 
matters  upon  the  probate  and  county  courts,  for  the  purpose  of 
enabling  such  courts  to  do  full  and  complete  justice  between  all 
claimants  and  parties  in  interest  relating  to  the  estate  of  de- 
ceased persons  during  the  administration  thereof.  Every  con- 
ceivable claim  is  susceptible  of  proof  in  such  court  with  the 
possible  exception  of  claims  growing  out  of  testamentary  trusts 
and  estates  in  the  hands  of  trustees.  Such  are  still  firmly  held 
and  controlled  by  courts  of  general  chancery  jurisdiction  in  this 
State.  It  is  unnecessary  to  enumerate  the  various  and  different 
kinds  or  nature  of  claims  that  are  susceptible  of  being  fully  con- 
sidered in  the  first  instance  by  probate  and  county  courts.  We 
however  show  the  jurisdiction  of  such  courts  and  the  law  re- 
lating to  such  claims  as  arise,  where  the  deceased  has  received 
money  in  trust  for  any  purpose  as  noted  or  defined  by  class 
six  of  the  70  section  of  the  Administration  act.^^  The  words 
used  in  this  section  of  the  statute,  relating  to  claims  of  the  sixth 


64— Ford      v.      First  National     Stone  v.  Wood.  16  111.  177;   Gould 

Bank,  201  III.  120.  v.   Bailey,  44  111.  491;   Wheeler  v. 

65— Ward    v.    Durham,  134    111.     Dawson,  63  111.   54;   Ward  v.  Dur- 

195.  ham,  134  111.  195;  Schlink  v.  Max- 

66— Noe    V.    Moutray,  170    111.      ton,    153     111.     447;     Sherman    v. 

169.  Whiteside,  190   111.   576. 

67— Cook  V.  Wood,   24  111.   295;         6S— Statute   cited   ante   482. 


CLAIMS  AGAINST  ESTATES.  401 

class,  "where  the  deceased  has  received  money  in  trust  for  any 
purpose,  his  executor  or  administrator  shall  pay  out  of  his  estate 
the  amount  thus  received  and  not  accounted  for,"  has  been  sub- 
stantially the  law  of  this  State  since  1872.  Previous  to  that 
date,  the  law  was:  When  an  executor,  administrator  or  guard- 
ian has  received  money  as  such,  his  executor  or  administrator 
shall  pay  out  of  his  estate  the  amount  so  received  and  not 
accounted  for,  which  shall  comprise  the  third  class.  The  sub- 
sequent enactments  struck  out  the  words  "where  the  executor, 
administrator  or  guardian  has  received  money  as  such"  and 
inserted  the  words  shown  in  the  present  act.^^  The  legislature, 
by  the  phrase  "in  trust  for  any  purpose,"  intended  to  extend 
the  class  of  preferred  claims,  but  how  far,  admits  of  question. 
"The  court  holds  in  that  case,  that  the  statute  does  not  neces- 
sarily extend  to  and  embrace  every  kind  of  trust;  that  it  does 
not  embrace  trusts  implied  by  law.  The  record  of  the  case 
considered  shows  three  distinct  claims  presented  and  urged  as 
coming  within  the  sixth  class.  One  claim  is  based  upon  the 
purchase  of  cattle  under  an  agreement  to  pasture  and  feed  the 
same,  and  pay  the  balance  when  sold  after  deducting  expense 
and  commissions  of  sale.  Under  one  claim  considered,  the  facts 
show  a  portion  of  the  cattle  were  sold  and  the  proceeds  received 
by  the  deceased,  one  of  the  parties  to  the  transaction,  but  the 
money  therefrom  could  not  be  identified ;  it  being  held  as  to  that 
claim,  that  such  money  was  not  trust  money,  within  the  meaning 
of  the  statute  in  question,  and  therefore  the  owner  of  the  cat- 
tle was  not  entitled  to  have  that  claim  allowed  in  the  sixth 
class.  But  as  to  another  lot,  sold  just  before  the  death  of  the 
party  intrusted  with  the  cattle,  where  the  proceeds  of  the  sale 
could  be  identified,  and  which  came  to  the  hands  of  the  executor 
of  the  deceased,  the  owner  was  held  to  be  entitled  to  have  his 
claim  allowed  as  of  the  sixth  class  for  his  share  of  the  proceeds. 
Another  portion  of  the  cattle  remaining  undisposed  of  at  the 
death  of  the  party  who  under  contract,  was  to  feed  and  pasture 

69— Wilson  V.  Kirby,  88  111.  566-569. 
36 


402  THE    LAW   OF   ESTATES. 

them  and  at  the  time  of  the  death  of  the  party  so  contracting, 
were  on  the  pasture  of  a  third  person,  who  held  a  lien  on  the 
cattle  for  his  rent,  and  who  sold  the  same  under  stipulation  of 
all  parties  interested,  that  the  proceeds  of  the  sale  should  be 
deposited,  to  await  the  settlement  of  the  rights  of  the  parties, 
it  was  held:  Should  there  remain  any  surplus  of  these  pro- 
ceeds, after  satisfying  claim  for  rent,  there  should  be  a  like 
allowance  in  the  sixth  class  to  the  extent  of  such  surplus.  "^<* 
The  word  "trust"  as  used  in  the  70  section  of  the  Administra- 
tion act,  is  used  in  a  restricted  sense,  and  refers  only  to  special 
or  technical  trusts.'^^  The  county  court  may  allow  under  this 
section  a  claim  to  a  fund  held  in  express  trust. '^^  it  is  also  held, 
a  claim  should  be  allowed  as  of  the  sixth  class,  for  money 
received  by  decedent  as  executor.'^^  Claims  of  heirs  against 
administrator's  estate  are  of  this  class.'^*  Money  or  property 
of  wards  in  hands  of  guardian  at  time  of  decease  are  in  this 
class. '^^  The  State  has  right  of  classification,  so  have  sureties 
on  bond  of  State  Treasurer,  who  have  made  good  his  defalca- 
tions. Such  being  held  a  technical  trust  that  may  be  recov- 
ered by  the  sureties  against  the  estate  of  such  principal  as  a 
claim  of  the  sixth  class."^  The  proceedings  in  the  presenta- 
tion and  allowance  of  claims  is  not  according  to  the  common 
law  practice,  and  there  is  no  mode  of  preserving  the  evidence 
or  exceptions  or  of  making  them  a  part  of  the  record  as  in  a 
suit  at  law.'^^    Such  a  proceeding  in  the  probate  or  county  court 

70— Wilson  V.  Kirby,  88  111.  569.  71— Delterman    v.    Ruppel,    200 

In  this  case  the  clause  of  the  stat-  111.  199. 

ute    relating   to    the   classification  72 — ^Deiterman    v.    Ruppel,    200 

of    claims    against   estates    of    de-  111.  199. 

ceased  persons,  and  which  gives  a  73 — Wilson  v.  Kirby,  88  111.  566; 

preference  in  cases  where  the  de-  Fitzsimmons    v.    Cassell,    98    111. 

ceased    has    "received    money    in  332. 

trust  for  any  purpose,"  held:   does  74 — Tracy    v.     Hadden,     78     111. 

not  necessarily  extend  to  and  em-  30. 

brace   every   kind    of  trust,    as   it  75 — Cruse  v.  Cruse,  21  111.  46. 
does   not   embrace   trusts   implied  76 — Whitbeck  v.  Estate  of  Ram- 
by  law.     (See  ante  482,  and  stat-  sey,    74    III.    App.    543;    Estate    of 
utory   citations.)  Ramsey  v.   People,   197  111.   572. 

77— Blair  v.  Sennott,  134  111.  78. 


CLAIMS  AGAINST  ESTATES.  •     403 

or  on  appeal  from  such  court  in  such  proceedinprs  is  not  gov- 
erned by  technical  rules  which  apply  to  a  formal  suit  at  law.'^^ 
In  allowance  of  claims  against  estates  the  probate  court  dis- 
regards mere  matters  of  form  and  looks  to  the  substanceJ^  In 
a  matter  where  equitable  relief  is  required  the  court  will  adopt 
forms  of  equitable  procedure,  and  in  other  cases  will  secure  to 
parties  the  rights  allowed  to  them  by  law,  for  the  purpose  of 
arriving  at  an  adjustment  of  the  claim.  A  claim  against  an 
estate  of  a  surety  on  an  executor's  bond  was  allowed  in  the  name 
of  the  usee,  instead  of  in  the  name  of  the  People  for  his  use.*^ 

486.  Priority  of  payment.  Section  71  of  the  Administra- 
tion act  provides :  ' '  All  claims  against  estates,  when  allowed  by 
the  county  court,  shall  be  classed  and  paid  by  the  executor  or 
administrator,  in  the  manner  provided  in  this  act,  commencing 
with  the  first  class;  and  when  the  estate  is  sufficient  to  pay  the 
whole  of  the  demands,  the  demands  in  any  one  class  shall  be 
paid,  pro  rata,  whether  the  same  are  due  by  judgment,  writing 
obligatory,  or  otherwise,  except  as  otherwise  provided.^^  Under 
the  law  there  can  be  no  preference  of  claims  allowed  in  the 
same  class,  they  are  under  the  well  settled  rules  to  be  paid  as  of 
the  class  allowed.^^  jf  assets  are  insufficient  to  pay  debts  in 
full,  they  should  be  distributed  pro  rata  among  claims  of  the 
same  class.*^  Where  a  claimant  receives  dividends  from  an- 
cillary estate,  even  though  showing  great  diligence  in  procur- 
ing administration  in  a  sister  state,  such  dividends  so  received 

78— Scheel    v.    Eidman,    68    111.  linois,   with   Jones   &   Addington's 

193;    Thomson    v.    Black,    200   111.  Supplements  thereto,  Vol.  1,  p.  308, 

465.  and  cases  cited;  Vol.  4,  p.  38,  and 

79— Wolf  V.  Beaird,  123  111.  585.  cases  cited;  Vol.  5,  pp.  18,  19,  and 

80— Thomson   v.    Black,   200   111.  cases  cited;    Kurd's  R.   S.   of  111., 

465.      As    to    trusts    and    trustees  1905,  p.  116. 

and     limitations     of     actions     as  82— People  v.  Phelps,  78  111.  149 ; 

applied  to  such,  see  chapters  xii-  Dodge  v.  Mack,  22  111.  93. 

xiii  of  this  work.  83— Armstrong  v.  Ck)oper,  11  111. 

81— R.  S.  1845,  p.  561,  sec.  120,  560;  Dunlap  v.  McGee,  98  111.  287; 

rewritten;    section    71,    chapter   3,  Mack    v.    Woodruff,    87    111.    570; 

"Administration  of  Estates."    Starr  Colton   v.   Field,  28   111.  App.  354; 

&  Curtis  Annotated  Statutes  of  II-  Pinneo  v.  Goodspeed,  22  111.  App. 

50. 


404  THE    liAW   OF   ESTATES. 

should  be  deducted  from  amount  to  be  paid  by  domiciliary  ad- 
ministrator;  this  being  the  rule  where  the  estate  is  insolvent.^* 
The  probate  or  county  court  may  require  a  creditor  to  account 
for  moneys  received  from  an  ancillary  administrator,  where  he 
comes  to  such  court  having  the  principal  administration  and 
seeks  to  receive  money  from  such  estate.  And  where  the  estate 
is  insolvent,  all  property  not  set  aside  for  the  widow  or  minor 
children  are  assets  for  the  payment  pro  rata  of  all  creditors 
according  to  classification;  the  place  for  distributing  the  assets 
for  payment  of  debts,  held,  to  be  the  domicile  of  the  deceased.*^ 

487.  Demands  or  claims  of  executor  or  administrator.  Sec- 
tion 72  of  the  Administration  act  provides:  "When  an  execu- 
tor or  administrator  has  a  demand  against  his  testator  or  intes- 
tate's estate,  he  shall  file  his  demand  as  other  persons;  and  the 
court  shall  appoint  some  discreet  person  to  appear  and  defend 
for  the  estate,  and,  upon  the  hearing,  the  court  or  jury  shall 
allow  such  demand,  or  such  part  thereof  as  is  legally  established, 
or  reject  the  same,  as  shall  appear  just.  Should  any  executor 
or  administrator  appeal  in  such  case,  the  court  shall  appoint 
some  person  to  defend  as  aforesaid.^^  Under  this  statute  it 
is  held:  A  guardian  of  minor  children,  who  is  also  adminis- 
trator of  the  parent's  estate,  cannot  retain  ward's  funds  to 
meet  his  own  claim  against  the  estate  for  which  he  is  adminis- 
trator; particularly  where  such  claim  of  guardian  was  barred 
by  the  statute  of  limitation.^^  Where  a  bill  was  filed  in 
chancery  to  set  aside  an  administrator's  sale  of  land  for  the 
payment  of  debts,  under  decree  of  county  court  of  Mason 
county,  Illinois.  The  record  in  the  case  shows  the  land  was 
sold  for  the  debt  allowed  to  the  administrator  solely.  It  further 
appears  there  was  only  the  form  of  sale  to  a  third  party,  who 

84 — ^Ramsey  v.  Ramsey,   97    111.  tated    Statutes    of    Illinois,    with 

App.  275;    Same  v.  Same,  196   111.  Jones  &  Addington's   Supplements 

188.  thereto.  Vol.   1,   p.   309,   and   cases 

85 — Ramsey  v.  Ramsey,  196  111.  cited;    Vol.    4,    p.    38,    and    cases 

188.  cited;  Kurd's  R.  S.  of  111.,  1905,  p. 

86— R.  S.  1845,  p.  561,  sec.  121;  116. 

sec.  72,  chapter  3,  "Administration  87 — In  re  Estate  of  Steel,  65  111. 

of  EJstates."     Starr  &  Curtis  Anno-  322. 


CLAIMS  AGAINST  ESTATES.  -105 

paid  no  money  at  such  sale,  but  the  pretended  purchaser  held 
the  title  for  the  administrator.  The  claim  of  the  administrator 
who  failed  to  proceed  as  the  statute  directs  was  not  allowed, 
the  court  holding,  the  land  was  still  liable  to  be  sold  for  the 
payment  of  just  debts  in  the  manner  pointed  out  by  the  stat- 
ute. But  had  the  purchaser  paid  money  to  the  administrator 
at  such  sale,  the  rule  would  have  been  otherwise.*^  Where 
claimants'  attorney  by  pre-arranged  plans  with  claimants  pro- 
cured their  attorney's  appointment  as  administrator,  who  forged 
notes  forming  the  bases  of  claims  allowed,  without  notice  to 
heirs,  and  without  defense  as  contemplated  by  the  statute  being 
made,  the  court  holding  the  proceeding  to  be  a  fraud  upon  the 
heirs  directed  under  the  facts  above  stated  that  the  unpaid 
purchase  money  be  paid  to  the  heirs,  whose  property  had  been 
wrongfully  sold.^^  The  liability  of  an  administrator  to  an 
estate,  denied  by  him,  is  analogous  to  a  claim  by  administrator 
against  estate,  amd  requires  the  appointment  of  some  discreet 
person  to  appear  and  defend  for  the  estate;  but  it  is  said  the 
better  practice  is  to  appoint  an  administrator  pro  tem.^^  Exe- 
cutor's claim  for  taxes  he  paid  during  the  lifetime  of  his  testa- 
tor should  be  presented  as  provided  in  this  section  of  the  stat- 
ute.^i  Appointment  to  defend  under  the  statute  should  be 
made,  where  the  principal  administrator  is  disqualified  to  axjt.^^ 
But  such  need  not  be  appointed,  where  the  demand  of  the 
administrator  is  partial  payment  upon  a  debt  fully  aeknowl- 
edged,^3  The  party  appointed  to  defend  must  act  in  good 
faith  and  with  reasonable  prudence.^^  And  where  executor's 
interest  does  not  appear  of  record,  this  section  of  the  statute 
does  not  apply .^^ 

88— Coat  V.  Coat,  63  111.  73.  92— Stone    v.    Haskins,    97    111. 

89 — Whitlock    v.    McCluskey,    91  App.    5;    Vandervier   v,    Fetta,    20 

111.  582.  Colo.   368. 

90 — May  V.  Leighty,  3G  111.  App.  93 — Emerick  v.  Hileman,  177  111. 

17;     Whitlock     v.     McClusky,     91  371. 

111.    582.  94— Switzer  v.  Kee,  69  111.  App. 

91 — Corrington  v.  Corrington,  15  500. 

111.  App.  360;    Mackay  v.  Pulford,  95 — Elting     v.      First     National 

36  111.  App.  593.  Bank,    173    111.    390.     In   this   case 


406  THE   LAW   OF  ESTATES. 

488.  Entries — classing — payment  before  allowance.  Section 
73  of  the  Administration  act  provides:  "The  county  court  shall 
make  an  entry  of  all  demands  against  estates,  classifying  the 
same  as  above  provided,  and  file  and  preserve  the  papers  belong- 
ing to  the  same.  If  an  executor  or  administrator  pays  a  claim 
before  the  same  is  allowed  as  aforesaid,  said  court  shall  require 
such  executor  or  administrator  to  establish  the  validity  of  such 
claim  by  the  like  evidence  as  is  required  in  other  cases,  before 
the  same  is  classed,  and  be  (he)  credited  therewith.  "^^  The, 
paying  of  a  claim  before  it  is  allowed,  puts  the  executor  or 
administrator  in  peril,  by  paying  in  this  manner  he  assumes  the 
risk  of  proving  the  claim  under  this  section  of  the  statute.^ '^ 
Executors  or  administrators  must  pay  the  percentage  on  the 
claims  determined  by  the  court  upon  the  amount  of  the  assets 
in  their  hands  belonging  to  the  estate,  and  such  percentage 
must  be  paid  although  some  creditors  have  been  paid  in  full.^* 
But  it  appears  claims  paid  by  the  executor  or  administrator 
within  the  time  allowed  by  statute,  in  certain  cases  have  stood 
as  a  credit  to  such  when  reported  to  the  court  before  final  settle- 
ment of  his  accounts  and  distribution.^^  The  classification  of 
the  claims  must  be  made,  it  is  a  part  of  the  claim  allowed.^ 

489.  Expense  incurred   by   executor    or   administrator   in 
erecting  head  stone  at  the  grave  of  deceased  considered  proper. 

the  court  of  chancery  took  juris-  tis  Annotated  Statutes  of  Illinois, 
diction  on  the  ground  of  gross  with  Jones  &  Addington's  Supple- 
mismanagement  of  the  estate  and  ments  thereto,  Vol.  1,  pp.  309,  310, 
breach  of  trust  by  the  executrix,  and  cases  cited;  Vol.  5,  p.  19,  and 
There  it  is  held  creditors  may  case  cited;  Kurd's  R.  S.  of  111., 
maintain  such  a  bill  and  set  aside  1905,  p.  117. 

a  sale   made  to  executrix   on   the  97 — Lynch     v.     Hickey,    13    111. 

ground    of    a    collusive    judgment  App.   139;    Wallace  v.  Monroe,   22 

rendered  by  the  county  court,  and  111.  App.  602. 

that  foreign  courts  have  no  juris-  98 — Foskett  v.  Wolf,  19  111.  App. 

diction  over  an  executor  acting  in  33. 

Illinois  alone.  99 — Harris    v.    Millard,    17    111. 

96— R.  S.  1845,  p.  562.  sec.  122;  App.  512. 

section    73,    chapter    3,    "Adminis-  1 — Ford  v.  First  National  Bank, 

tration  of  Estates."     Starr  &  Cur-  201  111.  128. 


CLAIMS  AGAINST  ESTATES.  407 

The  erection  of  a  suitable  head  stone  at  the  grave  of  a  deceased 
person  may  properly  be  considered  a  part  of  the  executor's  per- 
sonal expense,  when  the  rights  of  creditors  are  not  defeated  or 
jeopardized;  the  sum  expended  not  being  extravagant,  but  rea- 
sonable in  view  of  the  station  in  life  of  the  deceased,  and  the 
value  of  the  estate  left  by  him.  And  such  amount  so  expended 
should  be  allowed  as  a  credit  on  settlement  of  the  administra- 
tor.2  ii  jg  advisable,  however,  that  the  representatives  of  the 
estate  consult  the  court  of  probate  or  the  distributees  of  the 
estate,  or  both  as  to  the  amount,  if  any,  to  be  thus  spent.  In 
Colorado  such  a  claim  has  been  held  improper.^ 

490.  Partnership  claim.  A  partnership  debt  is  joint  and 
several,  and  the  creditor  has  the  right  to  elect  whether  he  will 
proceed  against  the  assets  in  the  hands  of  the  surviving  partner 
or  against  the  estate  of  the  deceased  partner.^  The  creditor  may 
proceed  against  the  estate  at  any  time  before  the  statute  of 
limitation  has  run;  and  the  failure  to  pursue  the  partnership 
assets  cannot  be  relied  upon  as  a  defense,  when  suit  is  brought 
against  the  estate.^ 

2 — Spire  v.   Lovell,   17   111.  App.  rule  is  put  in  force  to  the  effect 

559.  The  opinion  in  that  case  is  where  there  are  individual  and 
supported  by  the  following  author-  partnership  creditors  having  de- 
ities: Wood  V.  Vanderberg,  6  mands  against  an  estate,  the  in- 
Paige,  277;  McGlinsey's  Appeal,  14  dividual  creditors  will  have  prior- 
Serg  &  Rawley,  64;  Porter's  Es-  ity  as  to  the  individual  assets,  and 
tate,  77  Pa.  St.  43;  Fairman's  partnership  creditors  a  prior  claim 
Appeal,  30  Conn.  205.  against   firm   assets;    and   the    in- 

3 — Lusk  V.  Patterson,  2  Colo.  Ct.  dividual    creditor    will    have    the 

of  App.  306.  right  to  insist  that  no  part  of  tha 

4 — Silverman  v.  Chase,  Ex'r,  90  separate  assets  shall  be  taken  and 

111.   41;    Mason  v.   Tiffany,   45    111.  applied   in  payment  of  firm  debts 

392;    Doggett,    Ex'r,    v.    Dill,    108  until   all   separate   debts   are   paid 

111.    560;    Eads    v.    Mason,    16    111.  in   full.     Lindley   on   Partnership, 

App.  545.  1053;   and  see  authorities  cited  on 

5 — Doggett,  Ex'r,  v.  Dill,  108  111.  page   567   of  the   opinion   in  Dog- 

560.  In  this  case  the  well-settled  gett  v.  Dill,  supra. 


CHAPTER  XXIV 


AWARDS  TO  WIDOWS  AND  CHILDREN 


Sec. 

491.  The  widow's  allowance. 

492.  Allowance  to  children. 

493.  Appraisers  make  and  certify 

awards. 

494.  Appraisers  to  consider  condi- 

tions and  mode  of  living 
widow  was  accustomed  to  at 
time  of  husband's  death. 

495.  Property  awarded  vests  abso- 

lutely in  the  widow. 

496.  Right  to   award   not  affected 

by  renunciation. 

497.  Administrator's  duties  in  re- 

lation to  award. 

498.  When  the  widow's  award  is  a 

lien  upon  the  real  estate. 

499.  When  widow's  award  is  not  a 

lien  upon  real  estate. 


Sec. 

500.  Widow  may  release  her  award 

in  various  ways. 

501.  But  if  there  are  infant  chil- 

dren widow  cannot  release. 

502.  Ante-nuptial   agreement,   may 

or  may  not  be  bar  to  wid- 
ow's award. 

503.  Weaver  v.  Weaver. 

504.  McMahill  v.  McMahill. 

505.  Spencer  v.  Boardman. 

506.  Christy  v.  Marmon. 

507.  Where     the     widow     is     not 

bound  by  such  agreement. 

508.  Phelps  V.  Phelps. 

509.  Zachmann  v.  Zachmann,  Mur- 

dock  V.  Murdock. 

510.  Miscellaneous. 


Sec.  491.  The  widow's  allowance.  Under  the  Statute  of 
Illinois,  the  widow  has  a  special  right  to  certain  articles  of  per- 
sonal property,  and  she  takes  in  exclusion  of  debts,  claims, 
charges,  legacies  and  bequests,  except  funeral  expenses,  and 
holds  the  same  as  her  sole  and  exclusive  property.  The  widow, 
residing  in  this  State,  of  a  deceased  husband  whose  estate  is 
administered  in  this  State,  whether  her  husband  died  testate  or 
intestate,  shall,  in  all  cases,  in  exclusion  of  debts,  claims^ 
charges,  legacies  and  bequests,  except  funeral  expenses,  be 
allowed,  as  her  sole  and  exclusive  property  forever,  the  fol- 
lowing, to-wit: 

First — The  family  pictures  and  the  wearing  apparel,  jewels 
and  ornaments  of  herself  and  her  minor  children. 

408 


AWARDS   TO  WIDOWS  AND  CHILDREN.  409 

Second — School  books  and  family  library  of  the  value  of 
$100. 

Third — One  sewing  machine. 

Fourth — Necessary  beds,  bedsteads  and  bedding  for  herself 
and  family. 

Fifth — The  stoves  and  pipe  used  in  the  family,  with  the  neces- 
sary cooking  utensils;  or,  in  case  they  have  none,  $50,  in  money. 

Sixth — Household  and  kitchen  furniture  to  the  value  of  $100. 

Seventh — One  milch  cow  and  calf  for  every  four  members  of 
her  family. 

Eighth — Two  sheep  for  each  member  of  her  family,  and  the 
fleeces  taken  from  the  same,  and  one  horse,  saddle  and  bridle. 

Ninth — Provisions  for  herself  and  family  for  one  year. 

Tenth — Food  for  the  stock  above  specified,  for  six  months. 

Eleventh — Fuel  for  herself  and  family  for  three  months. 

Twelfth — $100  worth  of  other  property  suited  to  her  condi- 
tion in  life,  to  be  selected  by  the  widow. 

Which  shall  be  known  as  the  widow's  award;  or  the  widow 
may,  if  she  elect,  take  and  receive,  in  lieu  of  the  foregoing,  the 
same  personal  property,  or  money  in  place  thereof,  as  is  or 
may  be  exempt  from  execution  or  attachment  against  the  head 
of  a  family  residing  with  the  same.^ 

This  special  right  is  not  given  to  the  surviving  husband;  for 
the  debts  may  consume  the  whole  of  his  personal  estate  as  he 
has  no  special  right  to  an  award;  but  the  widow  if  she  survive 
has  her  award,  without  regard  to  the  debts  and  legacies,  whether 
the  husband  dies  leaving  a  will  or  not;  nothing  in  the  form  of 
a  claim  being  chargeable  to  the  widow  except  funeral  expenses. 
The  intention  of  the  legislature  and  the  policy  of  the  law  in 
this  respect  being  to  give  the  widow  under  all  circumstances 
support  during  the  administration  of  her  husband's  estate.'^ 

6— Law  of  1847,  p.  168,  sec.  1;  4,  p.  38;  Vol.  5,  p.  19;  and  cases 

section    74,    chapter    3,    "Adminis-  cited   under   section   of  statute   in 

tration  of  Estates."     Starr  &  Cur-  each  volume;   Kurd's  R.  S.  of  111., 

lis  Annotated  Statutes  of  Illinois,  1905,  p.  117. 

with  Jones  &  Addington's  supple-        7 — Strawn    v.     Strawn,     53    111. 

ments  thereto.  Vol.  1,  p.  310;  Vol.  263;   Boyer  v.  Boyer,  21  111.  App. 


410  THE    LAW   OF   ESTATES. 

492.  Allowance  of  award  to  children.  "When  the  person 
dying  is  at  the  time  of  his  death  a  housekeeper,  the  head  of  a 
family,  and  leaves  no  widow,  there  shall  be  allowed  to  the  chil- 
dren of  the  deceased,  residing  with  him  at  the  time  of  his  death, 
(including  all  males  under  eighteen  years  of  age,  and  all 
females),  the  same  amount  of  property  as  is  allowed  to  the 
widow  by  this  act.  "^  In  the  early  case  of  Lesher  v.  Worth,^ 
Mr.  Justice  Caton,  speaking  for  the  court,  gave  the  first  clear 
construction  of  this  section  of  the  statute,  and  that  construction, 
broad  and  liberal,  has  ever  since  been  closely  followed.  It  is 
said,  the  question  here  is,  whether  the  children,  where  the  intes- 
tate was  a  widow,  who  was  at  the  time  of  her  death  a  house- 
keeper, and  the  head  of  a  family,  shall  take  under  the  provi- 
sions of  this  section  the  same  as  if  the  intestate  had  been  a 
widower.  To  me  it  seems  exceedingly  clear,  that  the  children 
are  entitled  to  take  the  property  left  by  the  mother  the  same  as 
if  left  by  a  father.  It  cannot  be  denied  that  the  mischief  de- 
signed to  be  remedied  exists  in  the  one  case  as  much  as  in  the 
other.  Ingenuity  will  seek  in  vain  for  a  reason  why  the  orphans 
should  be  left  entirely  destitute,  where  the  familj'-  has  been 
broken  up  by  the  death  of  a  mother,  any  more  than  if  that 
calamity  had  happened  by  the  death  of  the  father.  They  are 
at  least  equally  entitled  to  the  humane  consideration  of  the 
legislature.  The  creditors  of  the  mother  have  no  more  just 
claim  to  take  the  last  crumb  from  the  mouths  of  the  orphans, 
and  turn  them  utterly  destitute  upon  the  world,  than  have  the 
creditors  of  the  father.  A  man  dies,  leaving  a  family  of  chil- 
dren to  whom  certain  property  is  set  apart  for  their  support. 

534;  McMahill  v.  McMahill,  113  tion  of  Estates,"  Starr  &  Curtis 
111.  461;  In  re  Scovill's  Estate,  20  Annotated  Statutes  of  Illinois, 
111.  App.  426;  Phelps  v.  Phelps,  72  with  Jones  &  Addington's  Supple- 
Ill.  545;  Miller  v.  Miller,  82  111.  ments  thereto.  Vol.  1,  p.  313;  Vol. 
4r5;  Sutherland  v.  Harrison,  86  4,  p.  39;  and  cases  cited  under  sec- 
Ill.  374.  See  section  13,  chapter  tion  of  statute  in  each  volume; 
52,  "Exemptions,"  Starr  &  Curtis.  Hurd's  R.  S,  of  111..  1905,  p.  118. 
8— Laws  of  1845,  p.  598,  sec.  4;  9— Lesher  v.  Worth,  14  111.  40. 
section  77,  chapter  3,  "Administra- 


AWARDS   TO  WIDOWS   AND   CHILDREN.  411 

At  the  next  door,  a  woman  dies,  leaving  also  a  family  of  chil- 
dren, who  are  turned  into  the  street  entirely  destitute.     Is  this 
the  equality  of  our  laws,  and  the  equal  justice  of  our  legisla- 
ture?    Why  should  the  children  of  a  deceased  father  be  pro- 
vided for  more  than  those  of  the  mother?    We  seek  in  vain  for 
the   object   of  such   a  discriminating  policy,  nor  was  it  ever 
designed  by  the  legislature.    Again  in  the  early  case  of  Strawn 
V.  Strawn,^^  it  is  held:     The  word  "family,"  as  used  in  this 
section  of  the  statute,  d«^s  not  include  alone  the  widow  and  , 
the  minor  children  of  the  deceased,  but  includes  such  persons 
as  constituted  the  family  of  the  deceased  at  the  time  of  his 
death,   whether   servants,   or   children   who   had   attained  their 
majority.     In  this,  is  not  to  be  included  boarders,  but  only  the 
persons   constituting  the  private   household  of  the   deceased.^  ^ 
Decedent's  real  estate  may  be  sold  to  pay  allowance  to  chil- 
dren of  statutory  award.^^     The  settled  policy  of  the  State  of* 
Illinois,  as  to  awards,  is  clearly  to  protect  the  widow  from  her  \ 
husband's  creditors  to  the  extent  of  her  award;    and  further  j 
to  protect  the  children  from  their  deceased  parent's  creditors  | 
to  the  extent  of  the  statutory  award  to  them,  where  such  are*' 
in  fact  children  of  either.^^     But  in  any  case  where  an  award 
is  allowed  a  marriage  relation  must  have  existed,  this  is  the 
theory  under  which  the  award  is  allowed,  and  of  course  the 
policy  of  the  law.^*    Dependency  upon  deceased  is  not  essential 
to  allowance  of  award  to  child.^^ 

493.  Appraisers  make  and  certify  awards.  The  apprais- 
ers shall  make  out  and  certify,  to  the  probate  court  or  county 
court  having  probate  jurisdiction,  an  estimate  of  the  value  of 
each  of  the  several  items  of  property  allowed  to  the  widow; 
and  it  shall  be  lawful  for  the  widow  to  elect  whether  she  will 

10—53  III.  263.  Lessley    y.    Lessley,    44    111.    527; 

11— McMahill    v.    McMahill,    113  Strawn  v.   Strawn,  53   111.  263. 
111.  461.  14— Hooper  v.  McCaffery,  83  111. 

12— Lynch    v.     Hickey,     13     111.  App.  341. 
App.  139.  15— Walford   v.   Deemer,   89    111. 

13— Lesher  v.  Worth,  14  111.  40;  App.   526. 


412  THE    LAW    OF   ESTATES. 

take  the  specific  articles  set  apart  to  her,  or  take  the  amount 
thereof  out  of  other  personal  property  at  the  appraised  value 
thereof,  or  whether  she  will  take  the  amount  thereof  in  money, 
or  she  may  take  a  part  in  money  and  a  part  in  property,  as 
she  may  prefer;  and  in  all  cases  it  shall  be  the  duty  of  the 
executor  or  administrator  to  notify  the  widow  as  soon  as  such 
appraisement  shall  be  made,  and  to  set  apart  to  her  such  arti- 
cles of  property,  not  exceeding  the  amount  to  which  she  may 
be  entitled,  and  as  she  may  prefer  or  select,  within  thirty  days 
after  written  application  shall  be  made  for  that  purpose  by 
such  widow.  And  if  any  such  executor  or  administrator  shall 
neglect  or  refuse  to  comply  with  the  above  requisition,  when 
application  shall  be  made  for  that  purpose,  he  shall  forfeit  and 
pay  for  the  use  of  such  widow,  the  sum  of  twenty  dollars  for 
each  month's  delay  to  set  apart  said  property  so  selected,  after 
the  said  term  of  thirty  days  shall  have  elapsed,  to  be  recovered 
in  the  name  of  the  People  of  the  State  of  Illinois,  for  the  use 
of  such  widow,  in  any  court  having  jurisdiction  of  the  same. 
When  there  is  not  property  of  the  estate,  of  the  kinds  men- 
tioned in  the  preceding  section,  the  appraisers  may  award  the 
widow  a  grc^s  sum  in  lieu  thereof,  except  for  family  pictures, 
jewels  and  ornaments,  and  in  case  such  v/idow  is  insane  or 
under  other  disabilities  then  the  conservator  or  guardian  of 
such  widow  may  make  such  selection;  and  in  case  such  widow 
die  before  such  award  is  made  or  before  such  selection  is  made 
then  the  administrator  or  executor  of  such  widow  may  cause 
such  award  to  be  made  and  may  make  such  selection  for  the 
benefit  of  the  estate  of  such  deceased  -widow.*  ^ 

494.  Appraisers  may  consider  conditions  and  mode  of  living 
widow  was  accustomed  to  at  time  of  husband's  death.    In  the 

case  of  Strawn  v.  Strawn,^"^  it  was  urged  that  no  distinction 

16 — Section  75,  chapter  3,  "Ad-  Supplements  thereto,  Vol.  1,  pp. 
ministration  of  Estates."  Starr  &  312,  313,  and  cases  cited;  Vol.  4, 
Curtis  Annotated  Statutes  of  Illi-  pp.  38,  39,  and  cases  cited;  Kurd's 
nois,    with    Jones    &    Addington's    R.  S.  of  111.,  1905,  p.  117. 

17—53  111.  263. 


AWARDS   TO   WIDOWS   AND   CHILDREN.  413 

should  be  made  in  the  amount  and  character  of  the  allowance 
between  the  widow  of  a  man  of  large  fortune,  left  with  an 
ample  and  well  furnished  homestead  upon  her  hands,  and 
obliged  either  to  abandon  it,  or  to  employ  servants  for  its  proper 
care,  and  a  widow  who  is  left  in  possession  of  a  small  house, 
which  she  has  been  accustomed  to  care  for  by  the  labor  of  her 
own  hands.  Meeting  this  proposition  the  court  held  in  that 
case,  that  the  legislature  designed  the  appraisers,  in  fixing  the 
amount  of  the  widow's  award,  should  take  into  view  the  condi- 
tion and  mode  of  life  in  which  the  widow  was  left  by  the  death 
of  her  husband,  and  to  regard  as  necessary  that  furniture  which 
is  the  ordinary  and  appropriate  furniture  of  such  homesteads. 
The  award,  however,  fixed  by  the  appraisers  and  certified  to 
the  court,  is  always  subject  to  the  approval  of  the  court;  which 
has  power  and  may  for  cause,  set  aside  the  appraisement  made 
and  order  a  new  appraisement;  but  the  court  has  no  power  or 
authority  to  modify  an  award  made  by  appraisers,  nor  can  it 
substitute  the  court's  judgment  for  that  of  appraisers.^^ 

495.  Property  awarded  vests  absolutely  in  the  widow.    The 

articles  of  personal  property  awarded  and  set  apart  to  the 
widow,  vests  absolutely  in  her,  and  her  award  takes  priority 
in  payment  of  all  debts  and  charges  except  funeral  expenses.*^ 

496.  Right  to  award  not  affected  by  renunciation.  "The 
right  of  a  widow  to  her  award  shall  in  no  case  be  affected  by 
her  renouncing  or  failing  to  renounce  the  benefit  of  the  provi- 
sions made  for  her  in  the  will  of  her  husband,  or  otherwise.  "20 

18— In  re  Scovill's  Estate,  20  111.  Miller  v.  Miller,  82  111.  470;   Sum- 

App.  426,  and  cases  cited  in  opin-  ner  v.  McKee,  89  111.  133;  Little  v. 

ion;   Miller  v.  Miller,  82  111..  463;  Williams,  7  111.  App.   67;    Ross  v. 

Marshall  v.  Rose,  86  111.  374;  Rut-  Smith,  47  111.  App.  197;  McMahill 

ledge  V.  Rutledge,  21  111.  App.  357;  v.  McMahill,  113  111.  461;   York  v. 

Boyer  v.  Boyer,  21  111.  App.  534;  York,  38  111.  522;  Furlong  v.  Riley, 

Lane  v.  Thorn,  103  111.  App.  217;  103   111.  628. 
Lipe  V.  Fox,  21  Colo.  140.  20— R.   S.   1845,  p.  546,   sec.  50; 

19 — Strawn    v.    Strawn,    53    III.  section    76,    chapter    3,    "Adminis- 

263;  Telford  v.  Boggs,  63  111.  498;  tration  of  Estates."    Starr  &  Cur- 


414  THE    LAW    OF   ESTATES. 

497.  Administrator's  duties  in  relation  to  award.  The  court 
holds  in  Illinois,  under  statute  law,  that  if  the  administrator 
fails  to  assign  such  articles  to  the  widow,  she  or  her  adminis- 
trators, if  she  died  subsequently  to  her  husband's  death,  may 
proceed  against  the  administrator  of  the  husband's  estate  for 
their  value.^i  It  is  also  held,  a  widow  is  entitled  to  interest 
on  the  balance  due  of  her  award,  when  she  has  made  election 
to  take  it  in  money.22 

498.  When  the  widow 's  award  is  a  lien  upon  the  real  estate. 

The  widow's  allowance,  in  case  it  is  not  paid  from  the  pereonal 
estate  or  by  relinquishment  and  selection,  is  a  lien  upon  the 
real  estate  of  the  deceased,  to  the  extent  of  the  award.  But  if 
a  portion  of  the  real  estate  has  been  devised  to  the  widow, 
together  with  the  value  of  the  residue  of  the  real  estate,  it  is 
to  be  taken  into  consideration,  and  a  proportionate  part  only 
becomes  a  charge  against  such  residue.^^  And  upon  a  deficiency 
of  personal  assets,  the  real  estate  of  the  deceased  may  be  sold 
to  pay  the  widow's  award.^* 

499.  When  widow's  award  is  affected  by  prior  lien  on  real 
estate.  A  judgment  creditor  filed  his  bill  in  chancery  to  reach 
the  debtor's  interest  in  a  co-partnership,  or  such  sum  as  might 

tis  Annotated  Statutes  of  Illinois,  homestead,  but  not  to  the  exclu- 
with  Jones  &  Addington's  Supple-  sion  of  his  children,  until  she 
ments  thereto,  Vol.  1,  p.  313,  and  shall  marry  again,  and  the  widow 
cases  cited;  Kurd's  R.  S.  of  111.,  fails  to  renounce  the  will,  she  will 
1905,  p.  117;  Cruce  v.  Cruce,  21  take  no  dower  or  estate  of  home- 
Ill.  46;  Miller  v.  Miller,  82  111.  stead  under  the  statute.  What- 
467;  Sutherland  v.  Harrison,  86  ever  rights  the  widow  may  take 
111.  367;  Administrators  of  Gullett  in  her  husband's  real  estate  she 
V.  Farley,  164  HI.  566.  will   derive   under   the   will.     The 

21 — York   V.   York,    38   111.   522;  general  rule  being  applied,  that  if 

Furlong  v.  Riley,  103  111.  628.  a  widow  takes  under  a  will,  she 

22 — Stunz  V.  Stunz,  131  111.  210.  will    be    bound    by    its    provisions. 

23 — Dettzer  v.  Schuester,  37  111.  It  was  therefore  held,  in  that  case, 

301.     In  Stunz  v.  Stunz,  supra,  it  the   wife   took   only   the   right   to 

was  held:     Where  a  will  gives  a  enjoy   the   homestead    in   common 

widow  one-third  of  the  net  income  with  the  children  during  her  wid- 

of    the    testator's    real    estate    for  owhood. 

life,  and  the  right  to  live  on  his  24— Lynch  v.  Hickey,  13  111.  139. 


AWARDS   TO  WIDOWS   AND   CHILDREN.  415 

on  settlement  of  the  partnership  matters,  be  found  coming  to 
him.  The  debtor  died,  and  his  widow  was  appointed  adminis- 
tratrix of  his  estate.  The  award  allowed  the  widow  was  more 
than  the  decedent's  interest  in  the  partnership,  and  she  claimed 
the  right  to  have  the  interest  in  the  co-partnership  applied  on 
her  award:  Held,  that  the  creditor's  lien  was  not  divested  by 
the  death  of  the  debtor,  and  that  in  such  case  the  widow  would 
take  only  so  much  as  was  left  after  satisfying  the  lien ;  the 
claim  of  the  widow's  award  is  against  the  estate  of  her  de- 
ceased husband ;  and  if  there  is  no  estate,  she  will  have  nothing 
to  rely  on  for  its  payment.  If  the  estate  is  incumbered  by  a 
valid  lien,  the  award  will  not  set  aside  the  lien.^s  And  it  has 
been  also  held,  where  a  widow  elected  to  take  under  the  will 
of  her  husband,  and  as  executrix  thereof,  completely  adminis- 
tered the  estate  without  claiming  her  award,  and  after  a  period 
of  more  than  ten  years  from  the  grant  of  letters  to  her,  she 
attempted  to  sell  the  real  estate  of  her  deceased  husband  to 
pay  an  award  to  her,  appraised  at  such  late  date ;  the  court  in 
such  case  applied  the  doctrine  of  laches,  because  there  was  no 
reasonable  excuse  for  such  delay,  holding  as  the  court  does, 
that  it  was  the  duty  of  the  appraisers  to  at  once  fix  the  widow's 
award,  and  if  they  fail  to  do  so,  the  widow  having  herself 
become  executrix,  might  have  in  that  capacity,  under  the  statute, 
compelled  the  appraisers  to  discharge  such  duty.-**  And  if  she 
desires  her  award  this  should  be  done  in  a  reasonable  time.-" 
The  widow  administered  the  estate  of  her  husband,  waived  her 
award  and  took  all  the  property  under  her  deceased  husband's 
will  for  life.  And  so  in  such  case,  the  waiving  of  the  widow's 
award  was  harmless,  for  she  took  the  whole  property  for  life 
without  claiming  her  award,  and  in  such  case  the  award  would 
constitute  no  lien  upon  the  property  even  if  not  waived.-^ 

25 — King,       Administrator,       v.     istrator,  v.   Goodwin,   130   III.   102. 
Goodwin,  130-  111.  102.  27— Furlong,    Administrator,    v. 

26— Furlong,    Administrator,    v.    Riley,  103  111.  626. 
Riley,   103   111.   626;   King,  Admin-        28— Brack     v.     Boyd,     202     111. 

440. 


416  THE    LAW    OF    ESTATES. 

500.  Widow  may  release  her  award  in  various  ways.  In 
general,  she  has  a  year  to  take  under  the  will  or  under  the  law 
by  statute;  but  a  widow  may  release  her  award  by  accepting 
another  provision  in  lieu  of  it,  or  by  a  direct  release  for  any 
purpose  where  she  is  fully  informed  of  all  the  benefits  in  so 
doing,  if  any,  or  the  truth  relating  to  the  fact  of  the  release 
given  by  her.  Her  award  being  by  express  provision  of  the 
statute  her  sole  and  exclusive  property,  she  may  act  with  the 
same  in  its  release  and  collection  like  any  other  claimant,  under 
such  limitations  as  the  law  imposes.^^ 

501.  But  if  there  are  infant  children,  widow  cannot  release. 

The  special  allowance  made  by  the  statute  for  the  widow  of  a 
deceased  person  is  as  much  for  the  advantage  of  the  children 
of  the  deceased  as  for  the  widow,  and  where  there  are  such  chil- 
dren residing  with  the  widow,  she  has  no  power  to  release  such 
award,  and  it  cannot  in  such  case  be  affected  by  an  ante-nuptial 
contract,  or  otherwise,  as  the  policy  of  the  law  is  to  provide  a 
home  for  the  family,  that  the  domestic  rights  may  remain  un- 
broken during  the  period  for  which  provision  is  made  for  them, 
notwithstanding  the  death  of  her  husband.^^  But  it  is  held 
arguendo,  that  a  widow  takes  her  award  as  her  absolute  prop- 
erty, not  as  trustee  for  children  or  members  of  family .^i 

502.  Ante -nuptial  agreement,  may  or  may  not  be  a  bar  to 
widow's  award.  The  following  cases  establish  the  doctrine, 
that  where  an  ante-nuptial  agreement  has  in  good  faith  been 
fully   performed   by   the   husband's    legal   representatives,   the 

29 — McMahill  v.   McMahill,    113  award,"  have  once  accrued  to  her 

111.  461;  In  re  Scoville's  Estate,  20  by  the  death  of  her  husband,  she 

111.    App.    426;    Maynard    v.    May-  may  exchange  the  specific  articles 

nard,  194  111.  48.  of  property  awarded  to  her  by  the 

30 — Phelps  V.  Phelps,  72  111.  545.  statute,    or    she    may    release    her 

31 — Weaver  v.  Weaver,   109   111.  right  to   them   altogether,   or   dls- 

225.    In  this  case  it  is  held:    After  pose   of   her   award,   the   same   as 

a    widow's    rights    in    respect    to  any   other   property  of  which  she 

what    is    termed     the    "Widow's  is  the  absolute  owner. 


AWARDS   TO  WIDOWS  AND   CHILDREN.  417 

widow  will  be  concluded  by  it,  whether  there  be  any  children 
or  not.32 

503.  In  Weaver  v.  Weaver,^'-^  there  were  no  children 
of  the  deceased  husband  and  his  widow,  but  a  son  of  the 
husband  by  a  former  marriage,  and  the  daughter  of  the  wife 
by  a  former  marriage  lived  in  the  family  of  the  deceased  hus- 
band as  members  of  his  family.  The  ante-nuptial  agreement 
provided  for  the  payment  of  $12,000  to  his  wife,  and  the  same 
had  been  fully  paid  by  the  legal  representatives  of  the  deceased 
husband  and  accepted  by  the  widow.  It  being  held,  the  widow 
was  concluded  by  the  ante-nuptial  agreement. 

504.  In  McMahill  v.  McMahill,^'*^  the  widow  accepted  the  sum 
of  money  specified  in  the  ante-nuptial  contract  to  be  paid  to  her, 
and  it  was  held,  that  her  right  to  a  widow's  award  was  barred. 

505.  In  Spencer  v.  Boardman,^^  there  were  no  children  born 
of  the  marriage  to  which  the  ante-nuptial  contract  related,  and 
no  child  or  children  of  the  husband  by  his  former  marriage 
resided  in  his  family  at  the  time  of  his  death;  it  being  held 
in  that  case,  where  there  are  no  children  of  the  marriage,  re- 
lating to  the  ante-nuptial  agreement,  the  widow's  award  may 
be  barred. 

506.  In  Christy  v.  Marmon,^^  the  husband  died  intestate, 
leaving  no  child  or  children  or  descendants  of  any  child;  and  it 
was  held,  the  ante-nuptial  agreement  was  in  the  nature  of  an 

32 — Weaver  v.  Weaver,   109   111.  In    Christy    v.    Marmon,    supra 

225;    McMahill    v.    McMahill,    113  (32),    the    provision    in    the   ante 

111.  461 ;  Spencer  v.  Boardman,  IIS  nuptial   contract   in   question   was 

111.,  553;    Christy  v.  Marmon,  163  to  the  effect  that  the  wife  shall, 

111.   225;   Zachmann  v.   Zachmann,  after  the   husband's   death,   "have 

201  111.  387;  Murdock  v.  Murdock,  full    control    and    use"    of   certain 

219  111.  123;   Kroell  v.  Kroell,  219  described  property  during  life  and 

111.  105.  widowhood,  and  that  she  "is  to  re- 

33 — 109  111.  225.  ceive  as  dower  from  the  estate"  of 

34—113  111.  461.  the  husband  "the  sum  of  $500  an- 

35 — 118  111.  553.  nually,"  was  held  bars  the  dower 

36—163  111.  225.  of   the   wife   in  the   husband's  es- 

26 


418  THE    LAW    OF   ESTATES. 

equitable  jointure,  and  barred  the  widow's  right  of  dower  in 
the  real  estate  of  the  deceased,  and  also  the  widow's  award, 
though  it  was  no  bar  to  her  right  of  homestead. 

507.  Where  the  widow  is  not  bound  by  such  agreement. 

The  courts  apply  the  doctrine,  "that  so  long  as  the  ante-nuptial 
agreement  remains  executory  she  may  repudiate  it."  Also, 
where  the  facts  of  record  are  found  to  be,  that  the  widow's 
family  consisted,  in  part  of  a  child  or  children  of  the  deceased 
husband,  and  that  the  agreement  was  unexecuted  by  the  legal 
representatives  of  the  decea.sed  husband,  the  widow  was  not 
bound  thereby,  nor  barred  of  her  right  to  the  award  which 
section  74  of  Chapter  3  of  the  "Administration  Act"  provides, 
shall  be  set  apart  for  widows  of  deceased  husbands  whose  es- 
tates are  being  administered  in  this  State.^'^ 

508.  In  Phelps  v.  Phelps,^^  it  was  held:  That  the 
allowance  of  a  widow's  award  was  provided  out  of  motives  of 
public  concern,  and  there  are  grave  reasons  why  a  law  enacted 
from  public  considerations  should  not  be  abrogated  by  mere 
private  agreement,  and  that  it  would  be  in  contravention  of  the 
policy  of  the  law  to  permit  a  man,  by  an  ante-nuptial  agree- 
ment, to  relieve  his  estate  from  the  operation  of  the  statute 
providing  that  an  allowance  should  be  made  for  the  mainte- 
nance of  the  widow  and  minor  children  for  a  limited  period; 
and,  upon  this  reasoning  it  was  held,  that  an  ante-nuptial 
agreement  was  inoperative  as  to  the  widow's  award.  In  that 
case  one  child,  born  of  the  marriage,  was  living  with  the  widow 
at  the  time  of  the  application  for  an  award. 

tate,  but  does  not  bar  her  inherit-  of    the    husband,    was    chargeable 

ance   as   heir   under  section    1    of  upon   the    whole   estate,    real    and 

the    Statute    of    Descent,    or    her  personal,  and  not  exclusively  upon 

right  of  homestead,  as  there  was  the    portion    inherited     by     heirs 

no    purpose    to    bar    her    of   these  other  than  the  wife, 

rights   expressed   in   the   will.     It  37 — See  note  6,  statute  citation, 

was  also  held  the  annuity  provid-  section  74,  chapt.  3,   "Administra- 

ed  for  under  the  ante  nuptial  con-  tion  of  Estates,"  Ante  491. 

tract  "as  dower   from  the  estate"  38 — 72  111.  546. 


AWARDS   TO   WIDOWS   AND   CHILDREN.  419 

509.  In  Zachmann  v.  Zaclimann,^'^  the  court  held:  The 
deceased  husband  left  him  surviving  a  minor  daughter  and  the 
appellant,  his  widow.  The  ante-nuptial  contract  remained  ex- 
ecutoiy, — a  bare  agreement, — and  it  was  therefore  within  the 
power  of  the  appellant  to  decline  to  be  bound  by  the  provi- 
sions of  the  contract  as  to  her  right  to  the  widow's  award.  A 
petition  for  appointment  of  appraisers  to  set  off  a  widow's 
award  is  not  a  proceeding  in  the  nature  of  an  action  ex  cmi- 
tractu.  The  right  to  a  widow's  award  under  the  statute,  de- 
pends upon  the  marriage,  the  continuance  of  the  marriage  re- 
lation until  death,  and  the  survivorship  of  the  wife.  A  con- 
tract executed  jointly  between  the  husband  and  wife,  whereby 
each  party  releases,  quit  claims  and  conveys  to  the  other,  both 
real  and  personal  property,  renouncing  forever  all  claims,  in 
law  and  equity,  of  curtsy,  dower,  homestead,  survivorship  or 
otherwise,  releases  the  right  to  the  widow's  award,  and  bars 
the  same,  if  there  are  no  minor  children  of  the  decedent  liv- 
ing with  the  widow.  Marriage  of  the  parties  to  an  ante  nuptial 
contract,  coupled  with  the  mutual  covenants  of  the  parties 
waiving  and  releasing  the  right  of  each  in  the  property  of  the 
other,  is  sufficient  consideration  for  the  contract;  and  such 
contracts  are  not  against  public  policy.^*^  But  if  the  provi- 
sions for  the  intended  wife  in  an  ante  nuptial  contract  is  dis- 
proportionate to  the  means  of  the  intended  husband,  the  hus- 
band and  those  claiming  under  him  have  the  burden  of  proving 
that  the  intended  wife,  at  the  time  she  executed  the  contract, 
had  full  knowledge,  or  reasonable  means  of  knoMdedge,  of  the 
nature,  character  and  value  of  the  intended  husband's  prop- 
erty; and  this  knowledge  must  be  brought  directly  to  the  in- 
tended wife  in  order  to  bind  her  under  such  contract.^^ 


39—201  111.  387.  638.     In  Zachmann  v.  Zachmann, 

40— Kroell     v.     Kroell,     219     111.  supra    (40),    it    was   held:      If    an 

105;   Zachmann  v.   Zachmann,  201  ante  nuptial  contract  providing  for 

111.  387.  the   payment  of  a  gross   sum   for 

41 — Murdock    v.    Murdock,    219  the  release  of  the  widow's  award, 

111.   123;    Yarde  v.   Yarde,   187  111.  dower    and    homestead    lights    is 


420 


THE    LAW    OF   ESTATES. 


510.  Miscellaneous  points  applicable  to  subject.  Children 
of  deceased  widow  are  entitled  to  statutory  award  out  of  her 
property.42  Delay  of  nine  years  unexplained  in  enforcing 
right  to  award  is  conclusive  of  such  right.^^  And  it  appears 
that  a  family  allowance  made  in  a  foreign  state,  if  enforcible 
in  this  State  must  be  presented  to  the  probate  court  like  any 
other  claim."***  Marriage  relation  must  have  existed  or  award 
cannot  be  allowed.**^ 


declared  inoperative  as  to  the  pro- 
vision for  waiver  of  homestead 
and  widow's  award,  it  is  inoper- 
ative in  toto  and  does  not  affect 
dower.  This  is  declared  to  be  the 
law,  as  statute  granting  benefit 
of  homestead  and  award  were  en- 
acted out  of  concern  for  the  pub- 
lic welfare  as  well  as  for  the  bene- 
fit of  those  directly  affected  by 
such  law,  in  so  far  as  tney  confer 
privileges  and  exemptions  upon 
persons,  not  only  for  their  own 
benefit  but  also  for  the  benefit  of 
others  dependent  upon  them,  and 
such  law  cannot  be  abrogated  by 
personal  agreements.  See  Recht 
V.  Kelly,  82  111.  147;  12  Am.  & 
Eng.  Ency.  of  Law,  2d  ed.  192,  and 
cases  cited;  Powell  v.  Daily,  163 
111.  646. 

42— Lesher     v.     Wirth,     14     111. 
39. 


43— Tarrant  v.  Kelly,  81  111. 
App.  121. 

44— Smith  v.  Smith,  174  111.  61. 

45— Hooper  v.  McCaffery,  83  111. 
App.  341.  In  Smith  v.  Smith 
supra  (44),  it  is  held:  The  rule 
that  it  is  the  duty  of  an  ancillary 
administrator  to  turn  over  the 
balance  in  his  hands,  after  pay- 
ing all  claims  in  his  jurisdiction, 
to  the  principal  administrator  to 
satisfy  unpaid  claims  in  his  juris- 
diction, applies  only  to  personal 
property  or  the  proceeds  of  the 
sale  thereof.  And  so  where  a  pro- 
bate court  in  a  foreign  state  al- 
lows a  claim  against  the  decedent's 
estate  within  that  jurisdiction  for 
a  "widow's  allowance,"  the  fact 
the  heirs  opposed  the  claim  in  that 
state  does  not  preclude  them 
from  contesting  the  widow's  right 
to  collect  such  judgment  out  of 
tbe  decedent's  estate  in  Illinois. 


CHAPTER    XXV 


COLLECTION  AND  DISPOSITION  OF  ASSETS 


Sec. 

511.  Collection  of  assets,  concealed 

effects,  discovery. 

512.  Refusal     to    answer — commit- 

ment. 


Sec. 

513.  The  title  to  personal  proper- 

ty involved. 

514.  Possession  of  chattel  is  prima 

facie  evidence  of  ownership. 


Sec.  511.  Collection  of  assets — concealed  effects — dis- 
covery. Section  81  of  the  Administration  Act,  provides: 
*'If  any  executor  or  administrator,  or  other  person  interested 
in  any  estate,  shall  state  upon  oath  to  any  county  court,  that 
he  believes  that  any  person  has  in  his  possession,  or  has  con- 
cealed or  embezzled,  any  goods,  chattels,  moneys  or  effects, 
books  of  account,  papers  or  any  evidence  of  debt  whatever,  or 
titles  to  lands  belonging  to  any  deceased  person,  or  that  he 
believes  that  any  person  has  any  knowledge  or  information  of 
or  concerning  any  indebtedness  or  evidence  of  indebtedness, 
or  property,  titles  or  effects,  belonging  to  any  deceased  person, 
which  knowledge  or  information  is  necessary  to  the  recovery 
of  the  same,  by  suit  or  otherwise,  by  the  executor  or  adminis- 
trator, of  which  the  executor  or  administrator  is  ignorant,  and 
that  such  person  refuses  to  give  to  the  executor  or  administra- 
tor such  knowledge  or  information,  the  court  shall  require 
such  person  to  appear  before  it  by  citation,  and  may  examine 
him,  on  oath,  and  hear  the  testimony  of  such  executor  or  ad- 
ministrator, and  other  evidence  offered  by  either  party,  and 
make  such  order  in  the  premises  as  the  ease  may  require.  "^ 

1— In  lieu  of  R.  S.  1845,  p.  556,  force    March    19,    1873,    Laws    of 

sec.    90;     Section    81,    chapter    3,  1873,  p.  1,  sec.  1.    The  amendment 

"Administration    of    Estates,"    as  inserting  provision  to  compel  dis- 

amended  by  act  approved  and  in  covery.   See  Starr  &  Curtis  Annotat- 

421 


422  THE    LAW    OF    ESTATES. 

512.  Refusal  to  answer — commitment.  Section  82  of  the 
Administration  Act,  provides:  ''If  such  person  refuses  to 
answer  such  proper  interrogatories  as  may  be  propounded  to 
him,  or  refuses  to  deliver  up  such  property  or  effects,  or  in  case 
the  same  have  been  converted,  the  proceeds  or  vahie  thereof, 
upon  a  requisition  being  made  for  that  purpose  by  an  order  of 
the  said  court,  such  court  may  commit  such  person  to  jail  until 
he  shall  comply  with  the  order  of  the  court  therein.^  Jurisdic- 
tion is  expressly  conferred  upon  courts  of  probate,  under  the 
two  sections  of  the  statute  cited,  which  are  often  applied  to- 
gether, upon  the  application  of  an  executor  or  administrator,  or 
other  person  interested  in  any  estate,  to  inquire  and  determine 
whether  another  person  has  in  his  possession  property  belong- 
ing to  an  estate  being  administered.^  The  court  of  probate 
however,  in  such  matter  is  invested  with  a  discretionary  power, 
and  it  is  not  compelled,  as  a  matter  of  arbitrary  law,  to  make 
any  specific  order.  The  discretion  is  not  unlimited,  but  should 
be  exercised  so  as  to  best  preserve  the  estate,  and  promote  its 
honest,  complete  and  prompt  administration.  Such  court  should 
look  beyond  the  mere  legal  right,  and  protect  the  equitable 
right  of  possession.  Hence,  the  court  should  not  require  the 
equitable  owner  of  promissory  notes,  made  payable  to  a  de- 
ed Statutes  of  Illinois,  with  Jones  p.  20;  Kurd's  R.  S.  of  111.,  1905, 
&  Addington's  Supplements  there-  same  sections  and  chapter,  pp.  118, 
to.   Vol.    1,    pp.    314,    315;    Vol.    4,     124. 

pp.  39,  40,  and  cases  cited  under  3 — Johnson  v.  Von  Kettler,  66 
section  of  statute  in  question  in  111.  63;  Steinman  v.  Steinman, 
each  volume;  Kurd's  R.  S.  of  111.,  105  111.  348;  Connor  v.  Akin,  29 
1905,  same  section  and  chapter.  III.  App.  584;  Seavey  v.  Seavey,  30 
p.  118.  111.   App.   625;    Borders   v.   People, 

2— R.  S.  of  1845,  p.  556,  sec.  90;  31  111.  App.  483;  U.  R.  &  T.  Co.  v. 
section  82,  chapter  3,  "Administra-  Shacklet,  119  111.  235.  In  this 
tion  of  Estates."  Starr  &  Curtis  case  it  is  held  as  a  general  prop- 
Annotated  Statutes  of  Illinois,  osition  of  law,  that  where  a  stat- 
with  Jones  &  Addington's  Supple-  ute  gives  a  new  right,  without  pro- 
ments  thereto.  Vol.  1,  p.  316;  see  viding  a  special  remedy  for  its  en- 
also  section  114,  chapter  3,  Admin-  forcement,  it  may  be  enforced  by 
Istration  Act.  Starr  &  Curtis,  etc.,  any  appropriate  common  law  ac- 
vol.  1,  p.  339;  Vol.  4,  p.  44;  Vol.  5,    tion. 


COLLECTION    AND    DISPOSITION    OF    ASSETS.  423 

ceased  person,  to  deliver  them  to  the  administrator  of  the  estate, 
when  not  required  for  the  payment  of  debts  of  the  estate  or 
for  the  purpose  of  distribution.*  The  affidavit  required  by  the 
statute  is  jurisdictional  and  must  be  made  to  give  the  court 
the  power  to  act.^  The  court  has  full  discretion  as  to  examin- 
ing parties,  and  is  not  confined  to  the  examination  of  the  de- 
fendant, it  may  examine  others  to  determine  the  facts  and  fix 
its  order  in  such  proceeding.^^  This  section  of  the  statute  does 
not  apply,  where  an  attorney  acting  for  an  administrator,  col- 
lects and  refuses  to  turn  over  money  belonging  to  an  estateJ 
The  court  may  permit  party  cited  to  testify  to  facts  occurring 
prior  to  death  of  deceased,  and  may  believe  and  act  upon  the 
uncontradicted  statements  of  such  witness.^  Proceedings  au- 
thorized by  section  of  the  statute  cited  is  in  the  nature  of  a 
bill  in  chancery  for  discoveiy  and  equitable  relief.^  And  the 
facts  appearing  in  proceedings  under  this  statute  are  subject 
to  review  in  Supreme  Court  after  affirmance  by  appellate 
court."  In  the  latter  case  it  was  held  appellant  was  not  en- 
titled to  a  jury  trial.  A  party  entitled  to  share  in 
the  estate  applied  to  the  probate  court  to  compel  the  ex- 
ecutors to  inventory  personalty  which  one  of  them  claimed 
to  own.  It  was  held  in  such  case.  The  probate  court  tries 
questions  relating  to  the  inventories  and  accounts  of  executors, 

4 — People  V.  McKee,  105  111.  588;  not  govern  any  case  which  is  to 

Wade    V.    Pritchard,    69    111.    279;  be   tried   by   the   court   without   a 

Connor  v.  Akin,  29  111.  App.  584;  jury    and    without    requiring    the 

Seavey    v.    Seavey,    30    111.    App.  consent  of  the  parties.     See  also 

625;  Borders  v.  People,  31  III.  App.  Hermann  v.  Pardridge,  79  111.  471. 

483;  Martin  v.  Martin,  170  111.  28;  5— Dinsmoor  v.  Bressler,  164  111. 

Mahoney    v.    People,    98    111.    244.  223. 

In   the  case  of  Martin  v.   Martin  6 — Wade    v.    Pritchard,    69    111. 

supra,  it  is  held,  section  41  of  the  279. 

Practice  Act  (Kurd's  R.  S,  of  111.,  7 — Dinsmoor  v.  Bressler,  164  111. 

1905,   chapt.   110,   p.   1536):      Con-  222. 

cerning  propositions  of  law,  applies  8 — Estate   of   Phillip    Kraher   v. 

only  to  cases  where  the  parties  are  Launtz,  90   111.  App.   499. 

entitled  to  a  jury  trial  but  waive  9 — Adams    v.    Adams,    181    111. 

the   jury  and   submit  the   case  to  210. 

the  court  by  agreement,  and  does  10 — Martin    v.    Martin,    170    111. 

28;  Coffey  v.  Coffey,  179  111.  290. 


424  THE    LAW   OF   ESTATES. 

administrators  and  guardians  in  a  summary  manner  and  with- 
out a  jury .11 

513.  The  title  to  personal  property  is  involved  by 
proceedings  under  sections  81  and  82  of  the  Administration 
Act,  cited.  In  the  case  of  Williams  v.  Cliamberlmn,^^  a  pro- 
ceeding was  commenced  in  the  probate  court  of  Cook  county, 
upon  the  separate  petitions  of  appellants,  two  sisters  of  the 
deceased  person.  These  petitions  were  consolidated  and  tried 
together,  one  petitioner  claiming  a  policy  of  insurance  on  the 
life  of  the  deceased  for  $10,000,  the  other  claiming  a  life  in- 
surance policy  on  the  life  of  deceased  of  $5,000.  The  sisters 
claiming  the  policies  as  gifts  from  their  deceased  brother,  whose 
estate  was  being  administered  in  that  court;  the  title  to  each 
policy  being  under  a  purported  assignment  of  the  same  to  the 
sisters  of  the  deceased  as  given  on  page  213  of  the  opinion  of 
the  court.  No  question  was  made  by  the  Insurance  Company 
as  to  its  liability  to  pay;  but  by  agreement  of  the  parties  in- 
terested, and  under  the  order  of  the  probate  court,  the  policies 
were  delivered  to  the  American  Trust  and  Savings  Bank  for 
collection;  that  bank,  to  hold  the  proceeds  thereof  in  trust  for 
the  party  who  should  finally  be  found  entitled  thereto.  On 
the  one  hand  the  administrator  claimed  the  policies  and  pro- 
ceeds of  these  policies  as  a  part  of  the  estate  being  adminis- 
tered. On  the  other,  the  petitioning  sisters  claimed  the  policies 
and  proceeds  thereof,  as  gifts  inter  vivos  or  causa  mortis  from 
the  deceased.     The  court  in  passing  upon  the  facts  of  record, 

concede  it  was  the  intention  of  W that  his  sisters  should 

have  this  insurance,  but  if,  from  mistake  of  law,  he  failed  to 
do  those  things  which  the  law  requires  to  carry  the  intention 

11 — Maynard  v.  Richards,  166  certain  personal  property  claimed 
111.  466;  Martin  v.  Martin,  170  111.^  by  the  executor,  is  an  equitable 
28;  Coffey  v.  Coffey,  179  111.  290.  one  invoking  the  summary  juris- 
In  this  case  it  is  held:  A  pro-  diction  of  the  court  and  the  com- 
ceeding  begun  in  the  probate  court  plaining  party  cannot  insist  on 
by  one  interested  in  an  estate,  to  a  jury  trial  on  appeal  to  the  cir- 
compel    an   executor   to   inventory    cuit  court. 

12—165  111.  210. 


COLLECTION    AND    DISPOSITION    OF    ASSETS.  425 

into  effect,  mere  proof  of  his  intention,  however  positive  and 
convincing,  cannot  change  the  title  to  the  property.  Page  218 ; 
There  are  three  requisites  necessary  to  constitute  a  donatio  causa 
mortis:  (1)  The  gift  must  be  with  a  view  to  the  donor's  death; 
(2)  It  must  have  been  made  to  take  effect  only  in  the  event  of 
the  donor's  death  by  his  existing  disorder;  (3)  There  must 
be  an  actual  delivery  of  the  subject  of  the  donation. 
It  is  essential  to  a  donation  inter  vivos  that  the  gift  be  absolute 
and  irrevocable ;  that  the  giver  part  with  all  present  and  future 
dominion  over  the  property  given;  that  the  gift  go  into  effect 
at  once  and  not  at  some  future  time;  that  there  be  a  delivery 
of  the  thing  given  to  the  donee ;  that  there  be  such  a  change  of 
possession  as  to  put  it  out  of  the  power  of  the  giver  to  repossess 
himself  of  the  thing  given.     Page  221:     The  evidence  does  not 

show,  that   W created  a  trust,   or  created  himself  the 

trustee  of  the  petitioners,  and  so  held  possession  of  the  policies 
for  them.  It  is  sufficient  that  he  did  not  do  so,  and  we  find 
no  evidence  in  the  record  that  he  made  the  attempt.  Held: 
from  a  mere  imperfect  gift  a  trust  cannot  be  deduced.  It 
cannot  be  determined  from  the  evidence,  whether  W re- 
tained the  policies  and  assignments  in  his  possession,  and  re- 
frained from  all  acts  showing  an  intent  to  deliver  them  and  to 
thus  complete  the  gifts,  in  order  that  he  might,  if  he  thought 
advisable,  change  his  mind  and  act  as  future  exigencies  might 
require,  or  whether  he  was  mistaken  in  the  law  and  supposed 
that  he  had  done  all  that  was  required  to  make  the  gift  com- 
plete. But  in  either  case  the  petitioners  are  without  remedy. 
It  is  also  held  in  that  case,  though  the  intention  to  make  a  gift 
is  clear,  yet  in  the  absence  of  actual  delivery,  his  acts  to  be 
equivalent  thereto,  if  of  a  testamentary  character,  must  be  iu 
compliance  with  the  statute  of  wills.^^ 

13 — Comer    v.    Comer,    120    111.  Richardson  v.  Richardson,   148  111 

420.     The  following  cases  sustain  563;    Taylor  v.   Harrison,   179   111 

Williams    v.    Chamberlain,    supra-  140;   Yokem  v.  Hicks,  93  111.  App 

(12):     Telford  v.  Patton,  144  111.  670;  Coffey  v.  Coffey,  179  111.  283 

611;  Barnum  v.  Reed,  136  111.  388;  Jennings  v.   Neville,   180  111.   277; 


426  THE    LAW    OF   ESTATES. 

514,  Possession  of  chattel  is  prima  facie  evidence  of 
ownership.  The  holder  of  a  certificate  of  stock  on  which  is  a 
printed  assignment  and  power  of  attorney  to  make  the  transfer, 
signed  by  the  owner,  is  presumed  to  be  rightfully  in  possession 
thereof,  and  such  is  prima  facie  authorized  to  fill  in  the  blank 
assignment  and  cause  a  transfer  to  be  made  to  himself  on  the 
books  of  the  corporation.^*  Proof  that  the  consideration  for  un- 
indorsed notes,  held  by  a  niece  of  the  payee  under  claim  of 
ownership,  was  money  loaned  by  the  payee  to  the  respective 
makers,  that  the  notes  were  delivered  to  the  payee  during  his 
life-time,  and,  although  payable  to  himself  or  order,  were  not 
endorsed  by  him  before  his  death,  does  not  overcome  presump- 
tion of  ownership  arising  from  possession.  Declarations 
by  the  holder  of  unindorsed  notes,  during  her  pos- 
session thereof,  to  the  effect,  that  they  had  been  given 
her  by  the  payee  before  his  death,  are  admissible  in  her 
favor,  as  tending  to  show  her  claim  of  ownership.!^  The 
possession  of  a  note  endorsed  by  a  deceased  party  is 
prima  facie  evidence  of  ownership.^^  But  a  note  payable  to 
the  order  of  a  deceased  party,  is  presumed  to  be  a  part  of  the 
estate  of  such,  and  will  require  proof  to  overcome  this  pre- 
sumption.i'^  But  it  is  held,  where  a  son  received  from  his 
mother  during  her  life-time,  certain  sums  of  money  which  he 
loaned  and  invested,  taking  notes  and  mortgages  in  his  own 
name,  and  who  after  his  mother's  death  claimed  to  be  the 
owner  thereof  by  his  mere  possession,  the  prima  facie  presump- 
tion of  ownership  was  overcome  by  the  proof  offered  showing 
the  facts  recited.  And  so  it  is  held  under  proceedings  had  pur- 
suant to  sections  81  and  82  of  the  administration  act,  that  pos- 
session of  property,  belonging  to  a  deceased  person,  was  not  as 

McCartney    v.   Ridgeway,   160    111.  15 — Martin   v.   Martin,    174    111. 

156.     See  also  chapter  xiv.  of  this  371. 

work,  "Gifts  causa  mortis  and  in-  16 — Wellman  v.  Highland,  87  111. 

ter  vivos."  App.   407. 

14— Coffey    v.    Coffey,    179    111.  17— Shea  v.  Doyle,  65  111.  App. 

283,  474. 


COLLECTION    AND    DISPOSITION    OF    ASSETS.  427 

owner  of  the  property,  but  as  agent  for  the  owner,  m  the  absence 
of  any  proof  or  claim  by  such  person,  under  a  sale,  gift  or  loan 
of  the  property.  The  rule  being  title  to  pei-sonal  property  is 
presumed  to  be  in  the  administrator  or  executor  or  other  rep- 
resentative of  an  estate,  unless  the  party  holding  the  same  show 
title  in  themselves,  by  sale  gift  or  otherwise.i^  And  where  a 
hearing  and  judgment  is  entered  in  a  court  of  probate,  an  ap- 
peal taken  and  judgment  entered  in  the  circuit  under  appeal, 
the  court  of  probate  has  jurisdiction  to  complete  administration 
and  compel  payment  of  such  judgment.^  ^ 

18 — Adams    v.    Adams,    181    111.  461;   Kraher's  Estate  v.  Luntz,  90 

210;    Same  v.   Same,   81   111.   App.  111.  App.  496;   Mahoney  v.  People, 

644;    Shea  v.   Doyle,    65   111.    App.  98   111.  App.  241. 

474;  Mulville  V.  White,  89  111.  App.  19— Hughes    v.    People,    5    Colo. 

91;   Kinney  v.  Keplinger,  172  111.  448. 


CHAPTER   XXVI 


PARTNERSHIP   ESTATES 


Sec. 

515.  General  remarks,  partnership, 

partners,  dormant  partner. 

516.  Duty  of  surviving  partner,  in- 

ventory. 

517.  Return  of  such  inventory. 

518.  Surviving  partner  should  nev- 

er be  appointed  administra- 
tor. 

519.  Rights   of   surviving  partner, 
account. 

520.  Liability  of  surviving  partner, 

— confusing  individual  and 
partnership  liabilities; — vex- 
atious or  unreasonable  delay 
in  rendering  account. 


Sec. 

521.  Waste,       citation,       security, 

costs. 

522.  The    right    of    the    surviving 

partner  to  purchase  of  the 
executor. 

523.  The  relation  of  the  assets  to 

the  individual  and  partner- 
ship debts. 

524.  The   executor   or   administra- 

tor of  a  deceased  partner 
entitled  to  share  of  profits 
when  surviving  partner  con- 
tinues business  and  uses  the 
deceased  partner's  capital. 

525.  Compensation     of     surviving 

partner  for  services. 


Sec.  515.  General  remarks,  partnership,  partners,  dor- 
mant partner.  ''A  partnership  is  a  voluntary  unincorporated 
association  of  individuals  standing  to  one  another  in  the  rela- 
tion of  principals  for  carrying  out  a  joint  operation  or  under- 
taking for  the  purpose  of  a  joint  profit.^  As  defined  by  Story 
on  Partnership:^  ''Partnership,  often  called  co-partnership, 
is  usually  defined  to  be  a  volimtary  contract  between  two  or 
more  competent  persons  to  place  their  money,  effects,  labor,  and 
skill,  or  some  of  them,  in  lawful  commerce  or  business,  with  the 
understanding  that  there  should  be  a  communion  of  the  profits 
thereof  between  them."  It  sometimes  happens  that  two  or 
more  persons  associated  together  in  a  business  enterprise,  though 
not  intending  to  form  a  co-partnership,  become,  in  legal  effect 


1 — Dixon's  Law  of  Partnership, 
sec.  1. 


2 — Story  on  Partnership,  sec.  2. 


428 


PARTNERSHIP  ESTATES.  429 

partners,  that  courts  hold  liable   for  debts  contracted  during 
such  association,^     A  dormant  partner  is  one  whose  name    is 
not  known  or  does  not  appear  as  a  partner,  but  who  is  a  silent 
partner  and  partakes  of  the  profits.'*     The  administrator  of  a 
deceased  partner  in  the  first  instance,  has  nothing  to  do  with 
either  the  partnership  assets  or  the  partnership   debts.     The 
surviving  partner  takes  the  exclusive  legal  title  to  the  assets 
for  the  payment  of  the  partnership  debts,  and  for  such  he  is 
held  a  trustee  and  accountable  as  such.^    The  surviving  partner 
has  the  right  to  use  the 'firm  name  by  which  to  transact  his 
business.®     Under  the  well  settled  rules,  it  is  the  duty  of  the 
surviving  partner  to  proceed  to  settle  the  business  of  the  part- 
nership without  delay,  and  the  duty  of  the  administrator  of 
the  deceased  partner,  to  see  that  the  surviving  partner  does 
so.    And  where  surviving  partner  fails  to  act,  or  unreasonably 
delays  a  settlement,  the  county  or  probate  court  may  by  proper 
proceeding  coerce  such  settlement,  or  a  court  of  chancery  upon 
application  may  remove  the  surviving  partner  from  the  trust 
and  appoint  a  receiver  of  the  court  that  will  settle  the  partner- 
ship business.'^     It  is  the  duty  of  the  surviving  partner  to  set- 

3 — Pettis  V.  Atkins,  60  111.  454;  during  the  life  of  the  depositor,  or 

Flagg  V.  Stone,  85  111.  164;  Hodg-  after  his  death.    And  so  under  the 

son  V.  Baldwin,  65  111.  532.  facts  stated  in  that  case,  a  check 

4 — Podrasnik  v.   Martin   Co.,  25  drawn    by   the   surviving   partner, 

111.   App.  300.  on  the  bank  in  question,  either  in 

5 — Talcott  V.   Dudley,   5   111.    (4  the  firm  name  or  in  his  own  name 

Scam.)    427;    People  v.   White,   11  as   surviving   partner,    when   paid 

111.   350;    Miller   v.   Jones,    39   111.  will  protect  the   bank.     See  Ford 

54;    Johnson    v.    Berlizheimer,    84  v.  Thornton,  3  Leigh  659;  Knocht 

111.  54.  V.  United   States   Savings   Inst,   2 

6 — Commercial    National    Bank  Mo.  App.  563;  Bank  v.  Armstrong, 

V.    Proctor,    98    111.    558.      In    this  4  Dev.  L.  519;  Matter  of  Franklin 

case,    it    was    held    the    surviving  Bank,  19  Am,  Decis.  422;  Munn  v. 

partner  had  the  right  to  change  a  Birch,  25  111.  35;  Peters  v.  Davis, 

deposit  in  the  name  of  one  part-  7  Mass.  256;  Bopp  v.  Fox,  63  111. 

ner  to  the  credit  of  the  firm.    But  540. 

If  the  sum   so   deposited   was  the        7 — Nelson  v,  Hayner,  66  111.  487; 
private   means   of   the   partner  so  McKean  v.  Vick,  108  111.  373;  Mil- 
depositing,  the  other  will  have  no  ler  v,  Kingsbury,  128  111.  47. 
power  to  control  it  or  check  it  out 


430  THE    LAW    OF   ESTATES. 

tie  all  the  obligations  of  the  firm  and  to  collect  all  the  debts 
due  the  firm.  And  this  must  be  done  in  the  name  of  the  sur- 
viving partner  at  the  expense  of  the  firm.^  The  death  of  a 
partner  terminates  the  partnership,  but  a  community  of  in- 
terest in  the  winding  up  of  the  partnership  matters  continues 
to  exist  between  the  surviving  partners  and  the  representatives 
of  the  deceased,  and  the  partnership  continues  to  have  a  lim- 
ited existence  for  that  purpose.^  The  winding  up  or  settling 
of  the  partnership  affairs,  after  the  death  of  one  of  the  part- 
ners, may  be  said  to  consist,  as  a  general  rule,  in  selling  the 
propertj^,  receiving  moneys  due  the  firm,  paying  the  firm  debts 
and  the  advances  of  the  partners,  returning  the  capital  con- 
tributed by  each  partner,  and  dividing  the  profits.^''  Partners 
may  contract  with  each  other  that  there  shall  be  no  good  will 
to  be  considered  as  property  or  as  an  asset  of  the  co-partnership, 
and  such  a  contract  may  be  expressly  made,  or  it  may  be  im- 
plied from  other  contracts  and  the  acts  and  conduct  of  the 
parties  in  interest.^^  But  a  judgment  recovered  by  a  surviving 
partner  for  damages  for  loss  of  profits  resulting  from  a  breach 
of  contract  which  occurred  during  the  life  of  the  other  partner, 
is  a  partnership  asset,  although  the  action  upon  which  the 
judgment  was  based  was  not  begun  until  after  such  partner's 
death.i2 

516.    Duty    of    surviving    partner — inventory.     Section  87 
of  Chapter  3  entitled  "Administration  of  Estates,"  provides: 

8 — Clay   V.   Freeman,   118   U.   S.  of  his   intestate's   capital,   in  con- 

97;   Maynard  v.  Richards,  166  111.  tinning  the   business,   which   such 

466.  capital  bears  to  the  entire  capital 

9 — Maynard  v.  Richards,  166  111.  of  the  firm,   or,  at  his  option,  to 

466.  have  such  share  of  the  capital  re- 

10 — Maynard    v.    Richards,    166  turned,   with  interest,  and  this  is 

111.  466.  true  although   by  the  partnership 

11 — Douthart  v.  Logan,   190  111.  articles  the  deceased  partner  was 

243.     In  this  case  it  is  held:    The  receiving  a  greater  share  of  profits 

executor  of  a  deceased  partner  is  than  his  portion  would  be  if  based 

entitled    to    that    portion    of    the  on  his  capital, 
profits  earned  by  the  wrongful  use        12 — Maynard    v.    Richards,    106 

111.  466. 


PARTNERSHIP  ESTATES.  431 

In  case  of  the  death  of  one  partner,  the  surviving  partner  or 
partners  shall  proceed  to  make  a  full,  true  and  complete  inven- 
tory of  the  estate  of  the  co-partnership  within  his  knowledge, 
and  shall  also  make  a  full,  true  and  complete  list  of  all  the 
liabilities  thereof  at  the  time  of  the  death  of  the  deceased  part- 
ner. He  or  they  shall  cause  the  said  estate  to  be  appraised  in 
like  manner  as  the  individual  property  of  a  deceased  person.^^ 

517.  Return  of  such  inventory.  Section  88  of  the  Ad- 
ministration act  provides:  "He  or  they  shall  return,  under 
oath,  such  inventory,  list  of  liabilities  and  appraisement,  within 
sixty  days  after  the  death  of  the  co-partner,  to  the  county  court 
of  the  county  of  Avhich  the  deceased  was  a  resident  or  carried 
on  the  partnership  business  at  the  time  of  his  death;  if  the 
deceased  shall  have  been  a  non-resident,  then  such  return  shall 
be  made  to  the  county  court  gTanting  administration  upon  the 
effects  of  the  deceased.  Upon  neglect  or  refusal  to  make  such 
return,  he  shall,  after  citation,  be  liable  to  attachment."^* 

518.  Surviving  partner  should  never  be  appointed  ad- 
ministrator. A  surviving  partner  should  never  be  appointed 
administrator  on  the  estate  of  his  deceased  partner,  because, 
as  such  survivor,  he  becomes  accountable  to  the  estate,  and  could 
not  well  account  to  himself  as  its  representative.^  ^  **As  this 
judgment  is  reversed,  we  take  occasion  to  say,  in  a  case  of  this 
kind,  the  probate  court  should,  on  the  trial  of  it,  proceed  as 
though  a  bill  in  chancery  had  been  filed,  hear  the  evidence, 
and  investigate  the  account  without  the  intervention  of  a  jury, 

13— Laws  of  1869,  p.  300,  sec.  1:  Statutes,    etc.,    Vol.    2,    pp.    2646, 

Section    87,    chapter   3,    "Adrainis-  2649,   and   cases  cited;    Kurd's  R. 

tration  of  Estates."     Starr  &  Cur-  S.  of  1905,  pp.  1335,  1337. 

tis  Annotated  Statutes  of  Illinois,  14 — In  lieu   of  Law  of  1869,  p. 

with  Jones  &  Addington's  Supple-  301,  sec.  2.     Section  88,  chapter  3, 

ments  thereto.  Vol.  1,  p.  317,  and  "Administration        of        Estates." 

cases  cited;  Vol.  4,  p.  40,  and  cases  Starr  &  Curtis  Annotated  Statutes 

cited;    Kurd's   R.    S.   of  111.,   1905,  of  Illinois,  Vol.  1,  p.  318;   Kurd's 

p.  119.     See  also  sections  4,  13,  14,  R.  S.  of  111.,  1905,  p.  119. 

chapter     84,     "Limited      Partner-  15 — Keward    v.    Slagel,    52    111. 

ships."     Starr  &  Curtis  Annotated  336. 


432  THE    LAW    OF   ESTATES. 

unless  it  should  appear  to  be  necessary  to  impanel  a  jury  to  try 
some  issue  of  fact  that  may  be  made  up,  as  in  ordinary  chan- 
cery cases.  "1^  A  surviving  partner  cannot  set  off  and  have 
allowed  his  individual  account  against  deceased  partner's 
estate,  from  firm  assets  in  his  hands.^^ 

519.  Rights  of  surviving  partner — account.  Section  89 
of  the  Administration  act,  provides:  "Such  surviving  part- 
ner or  partners  shall  have  the  right  to  continue  in  possession  of 
the  effects  of  the  partnership,  pay  its  debts  out  of  the  same, 
and  settle  its  business,  but  shall  proceed  thereto  without  delay, 
and  shall  account  with  the  executor  or  administrator,  and  pay 
over  such  balances  as  may,  from  time  to  time,  be  payable  to  him 
in  the  right  of  his  testator  or  intestate.  Upon  the  application 
of  the  executor  or  administrator,  the  county  court  may,  when- 
ever it  may  appear  necessary,  order  such  surviving  partner  to 
render  an  account  to  said  county  court,  and  in  case  of  neglect 
or  refusal  may,  after  citation,  compel  the  rendition  of  such 
account  by  attachment.^  ^  Upon  the  dissolution  of  a  partner- 
ship by  the  death  of  one  of  the  firm,  the  property  is  common, 
to  be  divided  according  to  the  shares  of  the  partners,  after  the 
payment  of  the  debts.  This  property  is,  first,  the  stock  in  trade 
as  originally  contributed,  with  all  the  additions  made  to  it; 
second,  real  estate  owned  by  the  company;  and  third,  in  cer- 
tain cases,  the  "good  will"  of  the  concern,  Remick  v.  Emig}^^ 
And  in  the  following  case  it  is  held  to  be  a  good  defense 
to  a  claim  filed  against  an  estate  of  a  deceased  person,  that 
its  items  grew  out  of  a  partnership  between  the  claimant 
and  the  intestate,  which  is  stiU  unsettled.     The  general  rule 

16 — Heward    v.    Slagel,    52    111.  tis  Annotated  Statutes  of  Illinois, 

336-340.     See  also.  Miller  v.  Jones,  with  Jones  &  Addington's  supple- 

39    111.    54;    Breckenridge    v.    Os-  ments  thereto,  Vol.  1,  pp.  318,  319, 

trom,  79  111.  71.  and  cases  cited;  Vol.  4,  p.  41,  and 

17 — Berry  v.  Powell,  18  111.  98.  cases  cited;  Vol.  5,  p.  19,  and  cases 

18— Laws  of  1869,  p.  301,  sec.  3.  cited;    Kurd's   R.   S.   of   111.,   1905, 

Section    89,    chapter    3,    "Adminis-  p.  119. 
tration  of  Estates."     Starr  &  Cur-         18a— 42   111.  342. 


PARTNERSHIP  ESTATES.  433 

was  applied  in  this  case,  to  the  effect:  That  where  the  affairs 
of  a  partnership  firm  have  not  been  settled  and  a  balance  struck 
between  its  members,  no  action  at  law  can  be  maintained  by 
one  member  of  the  firm  against  another.  The  remedy  in  such 
ease  is  in  equity,  to  obtain  a  settlement  of  the  accounts  of  the 
firm.i^  Personal  service  upon  non-resident  partner  in  a  suit 
for  accounting"  of  partnership  property  is  not  essential  to  the 
jurisdiction  of  the  court.^^ 

520.  Liability  of  surviving  partner  who  confuses  indi- 
vidual and  partnership  liabilities,  or  is  vexatious  or  un- 
reasonable in  rendering  account.  If  surviving  partner,  after 
the  death  of  his  partner  still  buys  goods  in  the  firm  name  of 
another  firm  of  which  he  was  a  partner,  and  had  or  allowed 
the  same  to  be  charged  to  the  old  firm,  the  same  as  before  the 
death  of  his  partner,  thereby  so  confusing  that  which  was  a 
liability  of  the  firm,  with  his  as  surviving  partner,  as  to  ren- 
der it  impossible  to  separate  the  two,  the  consequences  of  the 
confusion  must  fall  upon  the  surviving  partner,  unless  he  can 
show  the  parts  of  goods  so  purchased  chargeable  to  each.  Di- 
vcrsey  v.  Johnson.^^^  This  rule  is  laid  down:  '*If  a  party, 
having  charge  of  the  property  of  another  so  confounds  it  with 
his  own  that  the  line  of  distinction  cannot  be  traced,  all  the  in- 
convenience of  the  confusion  is  thrown  upon  the  party  who 
produces  it,  and  it  is  for  him  to  distinguish  his  own  property 
or  lose  it"  and  this  principle  holds  in  matters  of  account.^^  It 
is  also  held,  where  a  surviving  partner  is  unreasonable  and  vex- 
atious in  rendering  account  and  turning  over  balance  due  the 
deceased  partner's  estate  to  his  representatives,  the  surviving 
partner  will  be  chargeable  with  interest.^- 


19— Bowzer    v.    Stoughton,    119  20a— 93    111.    569. 

111.  47.  21—1  Story's  Eq.  Jur.  466. 

20— Williams    v.    Williams.    221  22— Bauer  Grocer  Co.  v.  McKee 

111.    544.       See    also    Hamilton    v.  Shoe  Co.,  87  111,  App.  436. 
Wills,  182  111.   144. 
99. 


434  THE  LAW  OF  ESTATES. 

521.  Waste — citation — security — costs.  Section  90  of  the 
Administration  act,  provides:  "Upon  the  committal  of  waste 
by  the  surviving  partner  or  partners,  the  court  may,  upon 
proper  application,  under  oath,  setting  forth  specifically  the 
facts  and  circumstances  relied  on,  protect  the  estate  of  the 
deceased  partner,  by  citing  forthwith  the  surviving  partner  or 
partners  to  give  security  for  the  faithful  settlement  of  the  af- 
fairs of  the  co-partnership  and  for  his  accounting  for  and  pay- 
ing over  to  the  executor  or  administrator  of  the  deceased  what- 
ever shall  be  found  to  be  due,  after  paying  partnership  debts 
and  costs  of  settlement,  within  such  time  as  shall  be  fixed  by 
the  court.  The  giving  of  such  security  may  be  enforced  by  at- 
tachment, or,  upon  refusal  to  give  such  security,  the  court  may 
appoint  a  receiver  of  the  partnership  property  and  effects,  with 
like  powers  and  duties  of  receivers  in  courts  of  chancery;  the 
costs  of  proceedings  under  this  section  to  be  paid  by  the  ex- 
ecutor or  administrator,  out  of  the  estate  of  the  deceased,  or  by 
the  surviving  partner,  or  partly  by  each,  as  the  court  may 
order.23  While  this  section  of  the  statute,  provides  some  reme- 
dies which  may  be  regarded  as  cumulative,  it  does  not  change 
the  nature  of  the  relation  between  the  surviving  partners  and 
the  representatives  of  the  deceased  partner,  and  does  not  affect 
the  right  of  the  latter  to  have  the  joint  property  applied  to  the 
payment  of  the  joint  debts,  and  a  due  distribution  of  the  sur- 
plus.^'*  The  death  of  a  partner  is,  ipso  facto,  from  the  time 
of  the  death,  a  dissolution  of  the  partnership,  however  numer- 
ous the  association  may  be.     But  a  community  of  interest  still 

23 — Laws  of  1869,  p.  301,  sec.  4.  of  chancery  will  grant  an  injunc- 

Section  90,  chapter  3,  "Administra-  tion  to  restrain  him  from  acting, 

tion   of  Estates."     Starr  &  Curtis  and  appoint  a  receiver  and  direct 

Annotated  Statutes  of  Illinois,  Vol.  the  account  to  be  taken.    In  equity 

1,  p.  319,  and  cases  cited;   Kurd's  the  surviving  partner  is  treated  as 

R.  S.  of  111.,  1905,  p.  120.  a   trustee,   with   fiduciary   relation 

24 — Nelson    v.    Hayner,    66    111.  existing    between     him     and     the 

487.     In  this  case  it  is  held:      If  legal     representative     of    the     de- 

the  surviving  partner  does  not  ac-  ceased   partner,   of   trustee   to   the 

count  in  a  reasonable  time,  a  court  cestuis  que  trust. 


PARTNERSHIP  ESTATES.  435 

exists  between  the  survivors  and  the  representatives  of  the  de- 
ceased partner,  and  the  latter  have  the  right  to  insist  on  the 
application  of  the  joint  property  to  the  payment  of  the  joint 
debts,  and  a  due  distribution  of  the  surplus.  So  long  as  these 
objects  remain  to  be  accomplished,  the  partnership  may  be  con- 
sidered as  having  a  limited  continuance.-^ 

522.  The  right  of  the  surviving  partner  to  purchase  of 
the  executor.  The  surviving  partner  may  purchase  from  the 
executor  of  the  deceased  partner,  all  the  interest  of  the  de- 
ceased partner  in  the  assets  of  the  firm,  after  partnership  debts 
are  paid,  and  such  purchase  may  include  profits  realized  since 
his  partner's  death.  But  a  power  of  sale  in  such  case  must  rest 
in  the  executor  or  administrator,  for  in  the  absence  of  such  he 
could  not  buy  the  partnership  effects  himself,  for  under  the 
law  in  the  absence  of  an  executor  or  administrator  he  would 
occupy  the  position  of  vendor  and  purchaser,  and  as  such  pro- 
hibited from  purchasing  at  his  own  sale.'-*^ 

523.  The  relation  of  the  assets  to  the  individual  and 
partnership  debts.     The  rule  is  established  in  Illinois  "that 

25 — Nelson  v.  Hayner,  66  111.  487.  for  about  ten  months  before  the 
26 — Kimball  v.  Lincoln,  99  111.  purchase.  Neither  can  such  re- 
578.  And  supporting  the  case  cover  against  the  estate  of  the  de- 
cited,  see  Chambers  v.  Howell,  11  ceased  partner,  on  the  theory  that 
Beav.  6;  Ray,  Exr.,  v.  Vilas,  18  the  books  were  not  correctly  kept 
Wis.  169;  Hamilton  v.  Wells,  182  by  him,  when  he  attempts  to  as- 
Ill.  144.  In  the  latter  case  it  is  sert  a  claim  which,  if  valid,  would 
held:  A  surviving  partner  who,  exist  in  favor  of  former  partners, 
upon  purchase  of  the  interest  of  and  where  it  is  shown  by  evidence 
the  deceased  partner,  assumes  the  he  was  familiar  with  the  business 
debts  shown  by  the  books  and  and  had  possession  of  the  partner- 
papers  of  the  firm,  cannot  enforce  ship  books  before  purchasing  the 
against  the  deceased  partner's  es-  interest  of  the  deceased  partner, 
tate  a  subsequently  discovered  lia-  See  also,  Norman  v.  Hudleston,  64 
bility  of  the  firm  not  shown  by  the  111.  11;  Over  v.  Herrington,  66 
journal  and  daily  balance  book,  Ind.  365;  Thompson  v.  Love,  111 
but  which  appears  from  a  register  Ind.  272;  Clark  v.  Carr,  45  111. 
and  other  papers  of  the  partner-  App.  469;  Baldwin  v.  Ball,  48 
ship,  and  which  were  in  his  hands  N.  Y.  673. 


436  THE  LAW  OF  ESTATES. 

partnership  property  must  first  be  applied  to  the  payment  of 
partnership  debts,  and  that  the  true  and  actual  interest  of  each 
partner  in  the  partnership  stock  is  the  balance  found  due  to 
him  after  the  payment  of  all  partnei-ship  debts,  and  the  ad- 
justment of  the  partnership  account  between  himself  and  his 
co-partners;  and  in  equity  real  estate  forms  no  exception,  but 
stands  on  the  same  footing  in  this  respect  with  personal  prop- 
erty, no  matter  in  whom  the  legal  title  may  be  vested.^^  Where 
partnership  real  estate  is  required  to  pay  debts,  it  is  in  equity 
considered  and  treated  as  personalty.^^  The  individual  cred- 
itors of  a  deceased  partner  have  a  prior  right  to  individual  as- 
sets.29  The  rule  laid  down  by  Washburn  on  Real  Estate,^^ 
is  to  the  effect,  "In  this  country, — and  generally  in  Eng- 
land,— the  doctrine  of  survivorship  is  limited  by  the  ex- 
tent to  which  equity  stamps  the  character  of  personalty  upon 
such  estates,  and  that  is,  so  far  as,  and  no  further  than,  they 
are  required  to  pay  partnership  debts."  And  the  same  author: 
"And,  as  would  naturally  be  inferred  from  the  premises  above 
stated,  whatever  remains  of  such  partnership  real  estate  after 
the  debts  of  the  company  shall  have  been  discharged,  is  held 
in  common,  and  is  at  once  subject  to  dower  or  curtsy,  and 
goes  to  the  heirs  or  devisees  accordingly,  "^i  A  sale  by  one 
partner  of  his  interest  in  the  firm  to  his  co-partner,  upon  the 
latter 's  assuming  and  agreeing  to  pay  the  debts  of  the  firm,  is 
a  personal  obligation  to  pay,  and  the  right  to  sell  and  dispose 
of  the  assets  is  vested  by  the  sale  in  the  co^partner,  free  from 
any  lien  on  the  assets  for  the  payment  of  the  firm  indebted- 
ness.32  But  it  will  be  otherwise,  if  on  the  dissolution  of  a  part- 
nership, an  amount  of  the  stock  of  goods  equal  to  the  firm  in- 

27— Bropp   V.   Fox,    63   111.    540;  Eads  v.  Mason,  16  111.  App.  548. 
Trowbridge  v.  Cross.  117  111.  113;  30— Vol.  1,  pp.  422,  423. 

Strong  V.  Lord,  107  111.  25;  Breen         31 — Washburn  on  Real  Property, 

T.  Richardson,  6  Colo.  605;  Charles  Vol.  1,  p.  423;  Lynch  v.  Lynch,  86 

V.  Eshleman,  5  Colo.  107.  111.  286. 

28— Strong  v.   Lord,  107  111.   25.         32— Hapgood  v.  Cornwell,  48  111. 

29— Doggett  V.  Dill,  108  111.  568;  65;    Rainey  v.   Nance.   54    111.   29; 

Silverman    v.    Chase,    90    111.    37;  Groembel  v.  Arnett,  100  111.  34. 


PARTNERSHIP  ESTATES.  437 

debtedness  is  left  with  one  who  continues  the  business,  to  be 
converted  into  money,  with  which  he  is  to  pay  the  partnership 
indebtedness;  for  in  such  case  he  can  not  be  held  a  purchaser, 
so  as  to  subject  such  goods  to  the  payment  of  his  individual 
debts  as  against  the  equities  of  the  retiring  partner.  He 
will  be  treated  as  a  trustee,  and  the  trust  may  be  enforced 
in  equity  by  the  retiring  partner  for  the  benefit  of  the  part- 
nersliip  creditors,  as  against  subsequent  purchasers  or  ex- 
ecution creditors  with  notice  of  the  equities  of  the  retiring 
partner.33 

524.  The  executor  or  administrator  of  a  deceased  pajrt- 
ner  entitled  to  share  of  profits  when  surviving  partner  con- 
tinues business  and  uses  the  deceased  partner's  capital. 
'  *  The  rule  which  the  authorities  seem  to  have  laid  down  in  such 
eases  and  which  appears  to  be  the  equitable  one,  is,  that  the 
representative  of  the  estate  of  the  deceased  partner  is  entitled 
to  that  proportion  of  the  profits  earned  by  the  wrongful  use  of 
the  deceased  partner's  capital  in  continuing  the  business  by 
the  surviving  partners  which  such  capital  bore  to  the  entire 
capital  of  the  co-partnership," — or  at  his  option,  to  have  such 
share  of  the  capital  returned,  with  interest,  and  this  is  true, 
although  by  the  partnership  articles  the  deceased  partner  was 
receiving  a  greater  share  of  profits  than  his  portion  would  be 
if  based  on  his  capital.  "^^ 

525.  Compensation  of  surviving  partner  for  services.     It 

is  well  settled  that  one  partner  cannot  charge  the  firm,  or  his 
co-partners,  for  his  services  in  attending  to  the  partnership 
business,  unless  there  is  a  special  agreement  among  the  partners 
entitling  him  to  do  so.     In  the  absence  of  such  agreement,  the 

33 — Parker  v.  Merritt,  105  111.  ship — Ewell's  ed.  976;  Robinson  v. 
293;  Williamson  v.  Adams,  16  111.  Robinson,  146  Mass.  167;  Freeman 
App.  567.  V.  Freeman,  142  Mass.  98;   Durbin 

34 — Douthart  v.  Logan,  190  111.  v.  Barney,  14  Ohio,  311;  Burnie  v. 
243.     See  also  Lindley  on  Partner-     Vandever,    16   Ark.    616;    Gates  v. 

Finn,  L.  R.  Ch.  Div.  839. 


438  THE  LAW  OF  ESTATES. 

law  will  not  imply  one  "from  the  greater  industry  or  greater 
ability  of  any  one  partner.  "^^  The  reason  for  the  rule  is,  that 
each  partner  is  under  obligations  to  devote  his  skill  and  efforts 
to  the  promotion  of  the  common  benefit  of  the  firm.^*^  And  the 
same  rule  applies  to  the  services  of  a  surviving  partner  as  be- 
tween himself  and  the  representatives  of  the  deceased  partner.'^''' 
Where,  however,  the  surviving  partner  renders  services  in  ex- 
cess of  the  mere  winding  up  of  the  partnership  affairs,  he  will, 
under  certain  circumstances,  be  entitled  to  compensation  for 
such  excess."*^  Where  the  surviving  partner  is  allowed  com- 
pensation, it  will  appear  he  successfully  continued  the  business 
of  the  firm,  or  successfully  completed  an  enterprise  in  which 
the  firm  has  been  engaged,  so  that  a  substantial  benefit  is  re- 
ceived from  his  efforts.  The  amount  of  compensation  will  vary 
according  to  the  state  of  the  accounts,  the  nature  of  the  busi- 
ness, the  difficulty  and  results  of  the  undertaking,  and  its 
necessity  or  desirability.^^  While  it  is  true,  that  compensation 
will  ordinarily  be  denied  to  a  surviving  partner  in  the  absence 
of  an  agreement  therefor,  yet  an  agreement  will  sometimes  be 
implied  where  the  services  are  extraordinary  and  unusual,  and 
such  as  could  not  reasonably  have  been  contemplated.*** 

35— Brownell  v.   Steere,   128   111.  38—17    Am.    &    Eng.    Ency.    of 

209;   Parsons  on  Partnership,  sec."  Law,  pp.  1154,  1183;  2  Lindley  on 

155;  Maynard  v.  Richards,  166  111.  Partnership,    sec.    346;     Bates    on 

480.  Partnership,   sec.   773.  Maynard  v. 

36— Lewis  v.  Moffatt,  11  111.  392;  Richards,    166    111.    481. 
Maynard  v.  Richards,  166  111.  480. 

37-17    Am.    &    Eng.    Ency.    of  ^9-2  Bates  on  Partnership,  sec. 

Law,   p.    1183;    Bates   on   Partner-  ^^=^=  ^J  ^^-  ^  ^°S-  ^^^^^  "^  ^^^' 

■ship,    sees.    771,    772;     Colier    on  P-  ^^^''• 

Partnership,  sec.  199;   Parsons  on        40 — 2  Bates  on  Partnership,  sec. 

Partnership,    sees.    346,    155    and  777,    and    authorities    cited    from 

note  C;  Maynard  v.  Richards,  166.  many  States  by  the  other  in  notes. 
111.  480. 


CHAPTER   XXVII 


SALE  OF  PERSONAL  PROPERTY 


Sec. 

526.  Title  vests  in  executor  or  ad- 

ministrator by  virtue  of  of- 
fice. 

527.  Sale    of    personal    property — 

Private  and  public  sale. 

528.  What  title  passes. 

529.  Neglect  to  take  security. 

530.  Miscellaneous. 

531.  Distribution    in    kind,    under 

will. 

532.  Distribution     in    kind,    prop- 

erty  preserved. 

533.  Growing  crops. 

534.  Growing  crops  personal  prop- 

erty   between    executor   and 
heir. 


Sec. 

535.  Clerks  may  be  employed,  also 

crier  or  auctioneer,  fees. 

536.  Bill  of  sale  to  purchaser,  re- 

turn by  administrator. 

537.  Compounding  and  sale  of  des- 

perate and  doubtful  claims. 

538.  Administrator   has    power    to 

settle  claim  in  favor  of  es- 
tate. 

539.  Avails    of    desperate    claims 

compounded  or  sold. 

540.  Sale  of  claims  not  due. 

541.  Power  of  executor  or  admin- 

istrator under  this  section. 

542.  Conveyance   to   executrix   for 

debts  to  testator. 


Sec.  526.  Title  of  personal  property  vests  in  executor  or 
administrator  by  virtue  of  their  office.  Executors  and  ad- 
ministrators so  long  as  they  retain  their  respective  offices,  are 
the  sole  representatives  of  the  personal  estate  of  the  deceased.* 
Property  of  a  decedent  coming  from  a  foreign  jurisdiction  into 
that  of  the  domicile,  immediately  vests  in  the  administrator 
there,  if  administration  has  not  been  taken  out  in  such  foreign 
jurisdiction.^  Where  personal  property  of  a  decedent  came 
within  the  state  of  Illinois  in  transitu,  it  was  held,  an  adminis- 
trator could  maintain  trover  and  treat  the  property  as  assets 
of  the  estate.^    The  following  rule  laid  down  by  Story 's  Conflict 


1— Gold   V.   Bailey,   44   111.   491;  National  Bank  v.  Gage,  93  111.  172; 

York  v,  York,  38   111.   523;   Make-  People  v.  Brooks,  123  111.  246. 
peace  v.  Moore,  5  Gillm.  (111.)  474;         2— Wells  v.  Miller,  45  111.  382. 
Wells  V.  Miller,  45  111.  382;   First        3— Wells  v.  Miller,  45  111.  382. 

439 


440  THE  LAW  OP  ESTATES. 

of  Laws  gives  the  doctrine  as  settled  in  most  of  the  states  of 
the  Union.  "Indeed,  as  the  author  says,  according  to  the  com- 
mon course  of  commercial  business,  ships  and  cargoes,  and  the 
proceeds  thereof,  locally  situate  in  a  foreign  country  at  the 
time  of  the  death  of  the  owner,  always  proceed  on  their  voyages 
and  return  to  the  home  port,  without  any  suspicion  that  all 
the  parties  concerned  are  not  legally  entitled  so  to  act;  and 
they  are  taken  possession  of  and  administered  by  the  adminis- 
trator of  the  forum  domicilii,  with  the  constant  persuasion  that 
he  may  not  only  rightfully  do  so,  but  that  he  is  bound  to  ad- 
minister them  as  a  part  of  the  funds  appropriately  in  his  hands. 
A  different  course  of  administration  would  be  attended  with, 
almost  inextricable  difficulties,  and  would  involve  this  extraor- 
dinary result,  that  all  the  personal  property  of  the  deceased 
must  be  deemed  to  have  a  fixed  situs  where  it  was  at  the  moment 
of  his  death,  and  if  removed  from  it  must  be  returned  thither 
for  the  purpose  of  a  due  administration."^  It  will  be  found 
on  an  examination  of  the  cases,  that  the  rule  is  quite  general 
and  the  courts  hold,  there  is  no  unbending  rule  in  regard  to 
property  having  a  fixed  situs;  the  jurisdiction  during  admin- 
istration of  an  estate  is  left  to  depend  largely  upon  what  may 
be  required  for  the  attainment  of  justice  in  each  case  as  it 
arises.  It  is  held,  the  lien  a  judgment  creditor  gets  by  virtue 
of  the  commencement  of  an  equitable  suit,  survives  the  death 
of  the  debtor,  and  that  his  property  then  passes  1»  his  personal 
legal  representatives  charged  with  the  lien;  the  debts  of  the 
decedent  to  be  paid  out  of  the  assets,  after  the  lien,  like  any 
other  legal  lien,  has  been  first  satisfied,^  Our  statute  of  de- 
scent, being  substantially  as  it  is  now,  since  the  organization 
of  the  State  government,  has  never  been  thought  to  prevent 
administrators  taking  title  in  trust  to  the  personal  property; 
the  language  of  the  statute  does  not  contemplate  that  personal 
property  shall   descend  to,  or  be  distributed  to,  the  heirs-at- 

4 — Story's     Conflict     of     Laws,        5 — First  National  Bank  v.  Gage, 
sec.    520.  93   111.   172. 


SALE  OF  PERSONAL  PROPERTY.  441 

law,  until  after  all  just  claims  and  debts  are  paid.^  An  ad- 
ministrator has  the  legal  title  to  the  personal  estate,  as  trus- 
tee, for  the  payment  of  debts ;  but  when  the  debts  are  paid  the 
residue  belongs  to  the  heirs-at-lawJ 

527.    Sale  of  personal  property — public  sale — private  sale. 

"When  it  is  necessary  for  the  proper  administration  of  the 
estate,  the  executor  or  administrator  shall,  as  soon  as  conve- 
nient, after  making  the  inventor}^  and  appraisement,  sell  at 
public  sale  all  the  personal  property,  goods  and  chattels  of  the 
decedent,  when  ordered  to  do  so  by  the  county  court  (not  re- 
served to  the  widow,  or  included  in  specific  legacies  and  be- 
quests, when  the  sale  of  such  legacies  and  bequests  is  not  neces- 
sary to  pay  debts),  upon  giving  three  weeks'  notice  of  the  time 
and  place  of  such  sale,  by  at  least  four  advertisements,  set  up 
in  the  most  public  places  in  the  county  where  the  sale  is  to  be 
made,  or  by  inserting  an  advertisement  in  some  newspaper  pub- 
lished in  the  county  where  the  sale  is  to  be  made,  at  least  four 
weeks  successively,  previous  thereto.  The  sale  may  be  upon 
a  credit  of  not  less  than  six  nor  more  than  twelve  months 
time,  by  taking  note  with  good  security  of  the  purchasers  at 
such  sale.  The  sale  may  be  for  all  cash,  or  part  cash  and  part 
on  time:  Provided,  that  any  part  or  all  of  such  personal  prop- 
erty may,  where  so  directed  by  the  court,  be  sold  at  private 
sale.  "8  It  is  absolutely  necessary  when  proceeding  under  this 
section  of  the  statute,  that  it  be  followed  closely;  it  confers  the 

6— People  V.  Brooks,  123  111.  246.  ary  9,  1874.    Section  91,  chapter  3. 

7 — Thornton  v.  Mehrig,  117  111.  "Administration  of  Estates."  Starr 
55.  See  also  section  1,  chapter  39,  &  Curtis  Annotated  Statutes  of  II- 
"Descent."  Starr  &  Curtis  Anno-  linois,  with  Jones  &  Addington's 
tated  Statutes  of  Illinois,  with  Supplements  thereto,  Vol.  1,  p. 
Jones  &  Addington's  Supplements  319;  Vol.  4,  p.  41,  and  cases  cited 
thereto,  Vol.  2,  pp.  1426,  1427;  Vol.  under  section  of  statute  in  each 
4,  p.  437;  and  cases  cited  under  volume;  Kurd's  R.  S.  of  111.,  1905, 
section  of  statute  in  question  in  p.  120.  See  also  section  44,  chap- 
each  volume;  Kurd's  R.  S.  of  111.  ter  41.  "Dower."  Starr  &  Curtis 
1905,  p.   763.  Statutes,  etc..  Vol.  2,  p.  1479,  and 

8 — As  amended  by  act  of  Febru-  cases  cited  under  section;    Kurd's 

R.   S.  1905,  p.  772. 


442  THE  LAW  OF  ESTATES. 

power,  and  it  directs  how  that  power  shall  be  exercised,  there 
being  no  room  for  discretion.^  The  statute  regarding  private 
sales  is  an  extraordinary  provision  in  derogation  of  the  com- 
mon law,  and  should  be  strictly  construed.  The  general  rule 
of  construction  applied  to  statutes  like  the  one  in  question, 
where  it  appears,  two  clauses  of  the  statute  are  parts  of  the 
same  section,  inseparably  connected  with  and  necessarily  de- 
pendent on  each  other,  is,  they  should  be  construed  one  part 
by  the  other.^*^  This  rule  was  applied  in  Bawen  v.  Shay,^^ 
when  the  same  section  of  the  statute  was  construed:  Mr. 
Justice  Craig,  speaking  for  the  court,  said:  "The  statute  re- 
quires an  administrator  to  sell  the  personal  property  belonging 
to  the  estate  at  public  sale  in  all  cases,  unless  otherwise  ordered 
by  the  court, — in  other  words,  the  statute  confers  power  on  the 
probate  court,  for  good  cause  shown,  to  order  a  portion  or  all 
of  the  personal  property  sold  at  private  sale./  But  the  statute 
does  not  confer  power  on  the  probate  court  to  direct  in  the 
order  that  the  property  may  be  sold  on  credit,  without  security. 
The  power  conferred  on  the  probate  court  is  merely  to  order  or 
decree  a  private  sale  in  the  place  of  a  public  sale, — in  all  other 
respects  the  law  regulating  a  public  sale  of  property  by  an  ad- 
ministrator remains  in  full  force  and  effect,  applicable  to  all 
sales,  private  as  well  as  public.  The  probate  court  has  no 
more  supervision  over  a  private  sale  than  it  has  over  a  public 
sale,  and  hence  the  same  responsibility  rests  on  the  adminis- 
trator to  get  as  good  security  in  the  one  case  as  it  does  in  the 
other.  The  words  ''provided,  that  any  part  or  all  of  such  per- 
sonal property  may,  where  so  directed  by  the  court,  be  sold 
at  private  sale,"  were  added  to  the  section  as  an  amendment, 
by  the  legislature,  in  1874,  and  as  the  amendment  contains  no 
expression  which  would  lead  to  the  conclusion  that  a  private 
sale  upon  credit  was  authorized  without  security,  we  think  it 

9— Hall   V.    Irwin,   2    Gill    (111.)         10— Moore    v.    Hamilton,    2    Gill 
184;    Moore    v.    Hamilton,    2    Gill     (111.)   429. 
(111.)  429.  11— Bowen  v.  Shay,  105  111.  137. 


SALE  OF  PERSONAL  PROPERTY.  443 

plain  that  the  legislature  intended  that  these  sales,  when  or- 
dered, should  be  made  with  security  precisely  as  public  sales 
are  made.  The  same  reason  that  i^equires  security  in  the  one 
case  demands  it  in  the  other. 

528.  What  title  passes.  The  general  principle  is  fully  es- 
tablished that  upon  all  judicial  sales  the  rule  of  caveat  emptor 
applies.^-  The  same  rule  applies  in  equity  as  in  law.^^  Also 
upon  sales  by  executors  and  administrators.^*  But  if  an  ad- 
ministrator takes  upon  himself  to  warrant  personal  property 
sold  by  him,  the  maker  of  a  note  given  for  such  property  may 
show  failure  of  consideration  under  the  warranty.^^  But  it 
appears  that  no  direct  remedy  lies  against  the  administrator  in 
equity.  The  purchaser's  remedy,  if  any,  is  at  law,  for  a  fail- 
ure of  consideration,  when  sued  on  his  notes  for  the  purchase 
money.i^ 

529.  Neglect  to  take  security.  In  the  case  of  Bowen  v. 
Shayy^  the  record  shows  the  order  of  the  probate  court  pre- 
scribed no  conditions  whatever  in  regard  to  the  sale,  nor  did 
it  impose  any  restrictions.  The  order  merely  authorized  a  pri- 
vate sale,  leaving  the  administrator  to  be  governed  by  the  stat- 
ute in  making  the  sale.  A  loss  to  the  estate  of  $7,019.58  was 
sustained  chargeable  to  the  failure  of  the  administrator  under 
the  order  noted  for  private  sale  to  take  security,  the  court  hold- 
ing: Had  the  administrator  followed  the  statute,  and  in  malt- 
ing the  sale  required  good  security,  he  could  have  been  charge- 
able with  no  loss;  but  as  he  has  neglected  a  plain  requirement 
of  the  statute,  and  the  estate  has  sustained  a  serious  loss  through 
his  negligence  it  is  but  right  that  the  loss  should  fall  upon  the 
one  who  has  been  to  blame.     Where  an  administrator  was  sued 

12— McManus  v.  Keith,  49  111.  14— Bond  v.  Ramsey,  89  111.  29; 
388;    Bassett  v.  Lockwood,  60  111.     Tilley  v.  Bridges,  105  111.  336. 

164;    Bishop    V.    O'Connor.    69    111.  i5_welch  v.  Hoyt.  24  111.  118. 
431;  Tilley  v.  Bridges,  105  111.  336; 

Brandon  v.  Brown,  106  111.  519.  16— Wing  v.  Dodge,  80  111.  564. 

13— Holmes    v.    Shaver,    78    111.  17—105  111.  132. 

578. 


444  THE  LAW  OF  ESTATES. 

upon  his  ofQcial  bond,  it  was  held:  On  the  sale  of  property 
belonging  to  the  estate,  where  the  administrator  received  the 
notes  of  the  purchasei-s  with  security,  and  it  resulted  that  the 
principals  and  sui'eties  were  insolvent,  this  will  show  prima 
facie,  that  the  administrator  had  neglected  his  duty,  and  was 
guilty  of  a  dcvastavit.^^ 

530.  Miscellaneous.  A  bill  was  filed  in  the  United  States 
Circuit  court,  seeking  the  disposition  and  control  of  certain 
stock  claimed  to  be  a  specific  legacy;  the  will  bequeathing  the 
legacy  being  admitted  to  probate,  and  the  estate  of  the  deceased 
at  the  time  the  bill  was  filed,  was  as  a  matter  of  fact,  being 
administered  in  the  county  court:  In  the  case  cited  and  upon 
the  showing  made,  the  federal  court  dismissed  the  bill  for  want 
of  equity,  holding,  the  probate  court  administering  the  estate, 
has  ample  power  to  protect  all  interests  in  due  course;  and 
that  that  court  was  the  proper  court  in  which  to  seek  the  liti- 
gation sought  by  the  bill  filed.^^  It  appears  an  executor  paid 
or  attempted  to  pay  a  specific  legacy  made  by  the  testator  in  his 
will,  by  the  transfer  to  the  legatee  of  a  certificate  of  deposit 
belonging  to  the  estate,  which  was  accepted  by  the  legatee  and 
his  receipt  given  therefor;  soon  after  the  assignment  of  the 
certificate,  and  on  presentation  thereof  for  payment,  the  maker 
thereof  became  insolvent  and  defaulted.  Held:  the  transac- 
tion was  unauthorized  and  void,  and  such  receipt  was  also  void. 
That  recovery  in  such  case  could  be  had  against  the  administra- 
tor personally  on  his  bond.20  Where  the  administrator  is  found 
guilty  of  a  devastavit,  the  right  to  sue  on  bond  follows  at  once.^^ 
The  record  shows  the  surviving  partner,  under  the  law  binding 
him  to  make  settlement  of  the  firm  affairs,  to  ascertain  the  in- 
terest of  the  deceased  partner,  purchased  from  the  administra- 
trix, the  interest  of  the  deceased  partner  and  assumed  the  debts 

18— Curry  v.  People,  54  111.  263.        20— Graff enried    v.    Kundert,    34 
19— Wanneker    v.    Hichcock,    38     111.  App.  483. 
Fed.  Reptr.   383.  21— Curry  v.  People,  54  111.  263; 

Haslet  V.  Haslet,  8  111.  App.  22. 


SALE  OF  PERSONAL  PROPERTY.  445 

shown  by  the  books  and  papers  of  the  firm.  After  this  settle- 
ment and  purchase  the  surviving  partner,  brought  forth  and 
filed  a  claim  against  the  deceased  partner's  estate,  which  he 
claimed  to  have  discovered  subsequent  to  the  settlement  and 
purchase  by  him  of  the  deceased  partner's  interest  in  the  firm, 
and  which  appeared  on  the  books  of  the  firm.  Held :  The  sale  by 
the  administratrix  of  the  interest  of  the  deceased  partner  in  the 
firm,  transferred  such  interest  as  the  estate  had  in  the  firm, 
which  could  only  be  ascertained  by  the  settlement  of  the  partner- 
ship accounts,  and  when  such  sale  was  made  and  the  valuation 
determined  as  to  the  interest  of  the  estate,  the  presumption  is, 
that  there  was  an  adjustment  of  the  accounts  of  the  deceased 
member  at  the  time,  and  that  all  accounts  were  taken  into  con- 
sideration.22 

531.  Distribution  in  kind  under  will.  "If  any  testator 
directs  that  his  estate  shall  not  be  sold,  the  same  shall  be  pre- 
served in  kind,  and  distributed  accordingly,  unless  such  sale 
becomes  absolutely  necessary  for  the  payment  of  debts  and 
charges  against  the  estate  of  such  testator."'^ 

532.  Distribution  in  kind  by  order  of  court.  '*If  the  sale 
of  the  personal  property  is  not  necessary  for  the  payment  of 
debts  or  legacies,  or  the  proper  distribution  of  the  effects  of  the 
estate,  the  court  may  order  that  the  property  be  preserved  and 
distributed  in  kind.  "^^    In  Waterman  v.  Alden,^^  this  section  of 

22 — Hamilton    v.    Wells,    adm'r.  Supplements    thereto.    Vol.    1,    p. 

182   111.  144.     And  see  the  follow-  320;  Vol.  4,  p.  41,  and  cases  cited 

Ing  cases    in   supporting  the   doc-  under   section   of   statute   in   each 

trine    of    that    case:       Norman  v.  volume;   Kurd's  R.  S.  of  111.,  1905, 

;Hudleston,    64    111.    11;     Over    v.  same  section  and  chapter,  p.  120; 

Harrington,   66   Ind.   365;    Thomp-  see  also  Starett  v.  Keating,  61  111. 

son  V.   Love,  111   Ind.   272;    Clark  App.  196. 

V.    Carr,    45    111.    App.    469;    Bald-  24— Section   93,  chapter   3,   "Ad- 
win  V.  Ball,  48  N.  Y.  673.  ministration  of  Estates."     Starr  & 

23 — Section   92,  chapter  3,  "Ad-  Curtis  Annotated   Statutes  of  lUi- 

ministration  of  Estates."     Starr  &  nois.  Vol.  1,  p.  320,  and  cases  cited 

Curtis  Annotated  Statutes  of  Illi-  under   section   of   statute;    Kurd's 

nois,    with    Jones    &    Addington's  R.  S.  of  III.,  1905,  p.  120. 

25—115  111.  86. 


446  THE  LAW  OF  ESTATES. 

the  statute  was  construed,  it  being  held,  that  which  the  court 
may  order  to  be  "preserved  and  distributed  in  kind"  is  "per- 
sonal property"  the  "sale  of  which  is  not  necessary"  for  the 
settlement  of  the  estate,  or  the  payment  of  debts  or  legacies.  The 
statute  has  made  no  provision  for  selling  notes  or  accounts,  ex- 
cept such  as  may  be  "doubtful"  or  "desperate."  No  provision 
is  made  for  selling  credits  that  are  readily  collectible,  and  no 
such  practice  has  ever  obtained,  for  the  simple  reason  no  neces- 
sity for  so  doing  ever  existed.  Of  course,  notes  and  other  evi- 
dence of  indebtedness  may  be  classed  as  "personal  property," 
but  they  are  evidently  not  that  kind  of  "personal  property"  the 
statute  contemplates  may  be  sold  for  the  payment  of  debts  or 
legacies,  or  the  proper  distribution  of  the  effects  of  the  estate 
and  which  the  court  may  order  to  be  preserved  and  distributed 
in  kind.  If  the  estate  consisted  of  stocks  which  are  not  collect- 
ible, and  which  can  only  be  realized  upon  by  a  sale,  or  of  govern- 
ment securities  that  would  not  come  due  in  many  years,  or  notes 
or  bonds  amply  secured  on  real  estate,  and  which  are  of  equal 
value,  the  sale  of  which  is  not  necessary  for  the  administration 
of  the  estate,  the  court,  no  doubt,  in  the  exercise  of  a  sound  dis- 
cretion, with  which  it  is  clothed  by  the  statute  in  such  matters, 
might  order  such  stocks  or  securities  to  be  preserved  and  dis- 
tributed in  kind.  And  it  seems  to  be  settled  in  the  case  cited, 
that  parties  in  interest  may  agree  upon  a  division  of  the  as- 
sets, such  as  choses  in  action,  some  of  which  are  "good,"  some 
"doubtful,"  and  others  "desperate,"  when  such  are  not  re- 
quired to  pay  debts.  But  they  cannot  ask  the  court  to  make 
such  division,  for  the  court  cannot  compel  a  division  of  such,  for 
the  reason,  it  cannot  determine  what  is  good  and  what  is  not, 
so  as  to  enable  the  court  to  make  equal  and  just  division.  Any 
attempt  to  do  so,  it  is  held,  would  involve  the  estate  in  inex- 
tricable difficulties. 

533.     Growing  crops.     Section  94  of  the  "Administration 

Act"  provides:  "If  any  executor  or  administrator  is  of  opin- 
ion that  it  would  be  of  advantage  to  the  estate  of  the  decedent 


SALE  OF  PERSONAL  PROPERTY.  447 

to  dispose  of  the  crop  growing,  and  not  devised  at  the  time  of 
his  decease,  the  same  shall  be  inventoried,  appraised  and  sold, 
in  like  manner  as  other  personal  property;  but  the  executor  or 
administrator  may,  if  he  believes  it  would  be  of  more  advan- 
tage to  the  estate,  cultivate  such  crop  to  maturity,  and  the  pro- 
ceeds of  such  crop,  after  deducting  all  necessary  expenses  for 
cultivating,  gathering  and  making  sale  of  the  same,  shall  be 
assets  in  his  hands,  and  subject  to  the  payment  of  debts  and 
legacies,  and  to  distribution  as  aforesaid.^^ 

534.  Growing  crops  personal  property  between  executor 
and  heir,  etc.  As  between  landlord  and  tenant,  between 
debtor  and  creditor,  and  under  our  statute,  as  between  the 
executor  and  heir,  growing  crops  are  personal  property.  But 
between  a  trespasser  and  the  owner  of  the  soil,  and  a  vendor 
and  vendee,  they  are  real  estate.  And  it  has  been  uniformly 
held,  that,  by  a  conveyance  of  land,  without  a  reservation  in. 
a  deed,  the  crops  and  all  thing's  depending  upon  the  soil  for 
sustenance,  belong  to  and  pass  with  the  land.^'  After  the  crops 
have  been  matured,  however,  it  is  otherwise,  but  until  they 
are  matured,  they  constitute  such  an  interest  in  real  estate, 
as  to  bring  them  within  the  statute  of  frauds.  And  to  pass  by 
a  sale  by  the  owner  of  the  soil,  it  must  be  evidenced  by  a  writ- 
ten agreement;  or  if  reserved  from  the  operation  of  a  convey- 
ance, it  must  also  be  in  writing.^^  Under  section  94,  the  ad- 
ministrator is  expressly  authorized  to  do  what  he  did  in  this 
case,  viz.:  as  administrator  of  his  father's  estate  he  sold  the 
growing  crops  as  other  personal  property,  and  applied  the  pro- 
ceeds toward  the  payment  of  the  decedent's  indebtedness.^^ 


26— Section   94,  chapter   3,   "Ad-  27— Powell  v.  Rich,  41  111.  466. 

ministration  of  Estates."     Starr  &  28-Smith  v.   Price,   39   111.   28; 

Curtis  Annotated   Statutes  of  Illi-  j^.^^^  ^   Nichols,  39  111.  372. 
nois,    Vol.    1,    p.    321,    and    cases 

cited   under  this   section;    Kurd's  29 — Cheeney    v.    Roodhouse,    32 

R.    S.   of   111.,   1905,   same  section  111.  App.  49. 
and  chapter,  p.  120. 


448  THE  LAW  OF  ESTATES. 

535.  Clerk  may  be  employed — also  crier  or  auctioneer — 
fees  of  same.  "In  all  public  sales  of  such  property  the  ex- 
ecutor or  administrator  may  employ  necessary  clerks,  who  shall 
receive  such  compensation  as  the  court  may  deem  reasonable 
for  their  services,  not  exceeding  five  dollars  per  day,  and  also 
a  crier  or  auctioneer  who  shall  receive  such  compensation  as  the 
court  may  deem  reasonable,  not  exceeding  ten  doUai's  per  day, 
to  be  paid  by  such  executor  or  administrator  and  charged  to  the 
estate.  "30 

536.  Bill  of  sale  to  purchaser — ^return  of  sale  by 
administrator.  "All  executors  and  administrators  shall,  im- 
mediately after  making  such  sales,  make,  or  cause  to  be  made, 
a  bill  of  the  sales  of  said  estate,  under  oath,  describing  par- 
ticularly each  article  of  property  sold,  to  whom  sold,  and  at 
what  price;  which  sale  bill,  when  thus  made  and  certified  by 
the  clerk  of  such  sale  and  the  crier  thereof,  if  any  such  was 
employed,  as  true  and  correct,  shall  be  returned  into  the  office 
of  the  clerk  of  the  county  court  in  the  like  time  as  is  required 
in  cases  of  inventories  and  appraisements."^^ 

537.  Compounding  and  sale  of  desperate  and  doubtful 
claims.  "Upon  suggestion  made  by  an  executor  or  administra- 
tor to  the  county  court,  that  any  claim,  debt  or  demand  what- 
ever belonging  to  the  estate  in  his  hands  to  be  administered, 
and  accruing  in  the  life-time  of  the  decedent,  is  desperate  on 
account  of  the  insolvency  or  doubtful  solvency  of  the  person  or 
persons  owing  the  same,  or  on  account  of  the  debtor  having 
availed  himself  of  the  bankrupt  law  of  the  United  States,  or 
on  account  of  some  legal  or  equitable  defense  which  such  per- 


30— As     amended     by     act    ap-        31— R.   S.  1845,  p.  557,  sec.  99; 

proved    June    18,    1891.      In   force  section    96,    chapter   3,    "Adminis- 

July  1,  1891.     Section  95,  chapter  tration  of  Estates."     Starr  &  Cur- 

3,     "Administration     of    Estates."  tis  Annotated  Statutes  of  Illinois, 

Starr  &  Curtis  Annotated  Statutes  Vol  1.  p.  321;  Kurd's  R.  S.  of  111., 

of  Illinois,  Vol.  1,  p.  321;    Kurd's  1905,  p.  120. 
R.  S.  of  111.,  1905,  p.  120. 


SALE  OF  PERSONAL  PROPERTY,  449 

son  or  persons  may  allege  against  the  same,  or  for  the  cause 
that  the  smallness  of  such  claim,  debt  or  demand,  and  the  diffi- 
culty of  finding  the  debtors,  owing  to  the  remoteness  of  their 
residence,  or  such  executor's  or  administrator's  ignorance  of 
the  same,  the  said  court  may  order  such  claim,  debt  or  demand 
to  be  compounded  or  sold,  or  to  be  filed  in  the  said  court,  for 
the  benefit  of  such  of  the  heirs,  devisees  or  creditors  of  such 
decedent  as  will  sue  for  and  recover  the  same,  giving  the  cred- 
itors the  preference,  if  they  or  any  of  them  apply  for  the  same 
before  the  final  settlement  of  such  estate;  Provided,  that  no 
order  for  the  sale  or  compounding  of  any  such  debts,  claims  or 
demands,  or  any  of  them,  shall  be  made  until  two  weeks'  public 
notice  shall  have  been  given,  to  all  whom  it  may  concern,  of  the 
time  and  place  when  the  said  order  will  be  applied  for — which 
notice  shall  be  given  by  the  administrator  or  executor,  in  a 
newspaper  published  in  the  county  where  such  application  is 
to  be  made,  or  if  no  such  newspaper  is  published  in  such  county, 
then  by  posting  up  such  notices  in  not  less  than  three  public 
places  in  the  county,  of  which  one  shall  be  at  the  office  of  the 
clerk  of  the  county  court — which  notice  shall  be  so  posted  at 
least  two  weeks  previous  to  the  time  of  said  application.  The 
executor  or  administrator  shall  report  to  the  said  county  court, 
for  its  approval,  the  terms  upon  which  he  has  settled  or  dis- 
posed of  any  such  claim,  debt  or  demand.^^ 

538.    Administrator   has   power   to   settle   claim   in   favcr 

of  estate.  An  administrator  has  full  power  and  competent 
authority  to  settle  a  claim  in  favor  of  the  estate  he  represents, 
and  if  done  in  good  faith,  his  action  cannot  be  called  in  ques- 
tion by  a  subsequent  administrator.^^  And  it  is  also  held  that 
under  section  83  of  the  statute  {ante  537),  an  administrator 
has  the  power  to  compromise  a  suit  against  a  railroad  company 

32 — ^R.    S.    1845,   p.    595,   sec.    1.  Vol.  1,  p.  316,  and  cases  cited  un- 

Section    83,    chapter    3,    "Adminis-  der  this  section;    Kurd's  R.   S.  of 

tration  of  Estates."     Starr  &  Cur-  111.,  1905,  p.  118. 

tis  Annotated  Statutes  of  Illinois,  33 — Short  v.  Johnson,  25  111.  405. 
29 


450  THE  LAW  OF  ESTATES. 

for  the  wrongful  death  of  intestate,  without  the  order  of  the 
probate  court.^*  A  suit  upon  a  promissory  note,  in  which  the 
limitation  acts  of  1849  and  1872  were  construed,  it  is  held, 
under  the  general  rule  of  construction,  that  "rights  or  lia- 
bilities" in  futuro  only  are  not  to  be  construed  to  affect 
past  transactions.^^  It  appears  from  the  record  that  the 
executor  instead  of  collecting  the  note  in  question  in  a 
compromise  or  settlement  exchanged  it  for  other  property, 
and  it  was  held:  In  the  absence  of  any  direction  by  will, 
an  executor's  duty  is  to  collect  notes  given  to-  the  testator,  in 
money.  He  has  no  authority  to  exchange  the  same  for  other 
property.  The  defendant  executor  pleaded  the  note  was  given 
for  $500  of  money  loaned  by  the  payee  to  a  Masonic  lodge,  and 
that  said  lodge  paid  divers  sums  of  money  on  the  note,  and 
after  the  death  of  the  payee,  the  plaintiff  (the  executor  of  the 
deceased  payee),  received  from  said  lodge,  in  payment  of  the 
note,  other  property  of  the  value  of  $1,400:  Held,  the  plea 
was  palpably  bad,  and  presented  no  defense.^^ 

539.  Avails  of  desperate  claims  compounded  or  sold.  ''And 
if  such  claim  is  compounded  or  sold,  such  executor  or 
administrator  shall  be  chargeable  with  the  avails  of  such  com- 
pounding, and  if  the  same  is  taken  by  any  of  the  creditors, 
heirs  or  devisees,  he  or  they  may  maintain  an  action  for  the 
recovery  thereof,  in  the  name  of  such  executor  or  administra- 
tor, for  the  use  hereinafter  mentioned;  and  upon  recovering 
the  same,  or  any  part  thereof,  he  or  they  shall  be  chargeable 
therewith,  after  deducting  his  claim  or  distributive  share,  with 
reasonable  compensation  for  collecting  the  same;  and  upon 
such  suits  the  executor  or  administrator  shall  not  be  liable  for 
costs."" 

34 — Washington  v.  Land  and  N.  37 — Laws  of  1845,  p.  505,  sec.  2. 

R.  Co.,  34  111.  App.  658.  Section    84,    chapter   3,   "Adminis- 

35 — Means  v.   Harrison,   114   111.  tration  of  Estates."     Starr  &  Cur- 

248.  tis  Annotated  Statutes  of  Illinois, 

36— Means  v.   Harrison,   114   111.  Vol.  1,  p.  316;  Kurd's  R.  S.  of  111., 

248.  1905,  p.  119. 


SALE  OF  PERSONAL  PROPERTY.  451 

540.  Sale  of  claims  not  due.  "The  county  court  may 
order  claims,  debts  and  demands,  due  at  so  remote  a  period  as 
to  prevent  their  collection  within  the  time  required  for  the 
final  settlement  of  estates,  and  the  collection  or  disposition  of 
which  is  necessary  to  the  payment  of  the  debts  against  the 
estate,  to  be  compounded  or  sold  in  the  same  manner  and  upon 
like  conditions  as  though  such  claims,  debts  or  demands  were 
desperate  or  doubtful ;  Provided,  that  no  such  claim,  debt  or 
demand  shall  be  sold  or  compounded  for  less  than  ten  per  cent 
below  the  value  thereof.  "^^ 

541.  Power  of  executor  or  administrator  under  this 
section.  An  administrator  may  legally  sell  and  transfer,  at 
a  discount,  negotiable  paper,  taken  for  the  estate,  before  it 
falls  due;  and  allowance  to  the  assignee  of  such  paper  and 
payment  thereof,  within  a  year  of  taking  out  letters,  is  good, 
provided  all  the  transaction  was  in  good  faith.^^  Executors 
and  administrator  may  assign  notes  made  to  the  testator  or 
intestate,  as  well  as  those  made  to  themselves.^*^  So  where  the 
deceased  had  agreed  to  transfer  a  note,  his  executors  or  admin- 
istrators may  be  compelled  to  endorse  it,  though  without  per- 
sonal liability  on  their  part.*^ 

542.  Conveyance  to   executrix  for  debts  to  testator.     It 

is  held  from  the  facts  in  the  case,  that  a  conveyance  to  a  per- 
son who  is  an  executrix,  passes  to  her  the  fee,  and  she  may  sell 
and  dispose  of  the  land,  although  received  in  satisfaction  of  a 
debt  due  her  testator.  And,  having  exchanged  the  land  thus 
received  with  one  of  the  heirs  of  testator  for  land  of  equal 
value,  which  he  had  inherited  from  his  father,  and  she  having 
conveyed  these  lands  received  from  the  heir  to  the  other  heirs, 

38— Laws   of   1851,    p.    556,    sec.  39— Walker  v.  Craig,  18  III.  116. 

94.      Section    85,    chapter   3,    "Ad-  40 — Story  on  Promissory  Notes, 

ministration  of  Estates."     Starr  &  p.    139,    sec.    123;     Makepeace    v. 

Curtis  Annotated  Statutes  of  lUi-  Moore,   5   Gill    (111.)    476;    Walter 

nois.  Vol.  1,  p.  317;   Kurd's  R.  S.  v.  Kirk,  14  111.  56;  Dwight  v.  New- 

of  111.,  1905,  p.  119.  ell,  15  111.  335. 

41— Walker  v.  Craig,  IS  111.  116. 


452 


THE  LAW  OF  ESTATES. 


she  must  be  held  to  have  accounted  for  the  proceeds  of  the 
original  debt,  and  the  lands  conveyed  by  her  in  exchange  for 
the  others  cannot  be  regarded  as  being  held  in  trust  for  the 
benefit  of  the  heirs."*  2 


42— Greer  v.  Walker,  42  111.  401. 
la  this  case  there  are  no  author- 
ities cited,  the  case  being  decided 
on  the  facts  of  record  establishing 
the  law  of  the  case  announced.  It 
appears  the  executrix  had  reported 
a  large  amount  of  assets  with 
which  she  was  charged,  and  had 


accounted  for  a  greater  sum,  and 
it  was  held,  in  such  case,  a  pre- 
sumption will  be  indulged,  in  the 
absence  of  proof,  that  the  debts 
for  which  the  property  conveyed 
to  her  was  received  of  the  debtor 
was  reported  and  accounted  for  in 
her  settlement  with  the  probate 
court. 


CHAPTER   XXVITI 


EXECUTOR'S  SALE  OF  REAL  ESTATE  UNDER  WILL 


Sec. 

543.  Powers    of    executors    in    the 

sale  of  land.  Such  charge- 
able with  all  real  and  per- 
sonal estate  coming  to  their 
hands. 

544.  Sale  of  real  estate  under  will 

surviving  executor. 

545.  Executor  must  qualify  in  or- 

der to  exercise  power  of 
sale. 

546.  Administrator   with   the   will 


Sec. 

annexed      must      apply      to 
chancery  to  sell  land  in  will. 

547.  Death  of  sole  executor,  power 

conferred    on   administrator 
appointed. 

548.  Revocation    of    letters — death 

or  disqualification  of  execu- 
tor or  administrator,  etc. 

549.  Bond  of  former  executor,  etc., 

liability. 

550.  Resignation  of  executor  or  ad- 

ministrator— settlement. 


Sec.  543.  Powers  of  executors  and  administrators  in 
the  sale  of  land.  The  executor  acts  under  the  power  con- 
ferred by  will,  if  any  there  be;  such  officer  also  obtains  powers 
under  the  statute  law  of  the  state,  and  when  such  law  controls 
his  acts  he  must  follow  the  law  faithfully.  The  administrator 
is  purely  a  creature  of  the  statute  of  the  state  in  which  he 
acts;  therefore,  all  his  powers  of  necessity  come  from  that  law. 
In  Illinois  and  many  other  states  the  common  law  is  in  force, 
where  such  is  not  changed  or  modified  by  statutory  enactments. 
If  an  executor  nominated  by  will,  accept  the  office  as  such, 
and  has  in  reality  no  power  conferred  by  the  will,  the  law 
designates  him  a  naked  executor,  and  as  such  he  is  as  much  a 
creature  of  the  law  as  an  administrator;  and  he  has  no  more 
or  greater  power  than  an  administrator.  The  legal  distinction 
being,  the  executor  administers  an  estate  under  the  testator's 
will,  the  administrator,  an  estate  of  a  person  dying  without  a 
will,  and  as  the  law  which  creates  him  directs.  On  the  other 
hand,  if  the  will  confers  power  upon  the  executor  to  sell,  mort* 

453 


454  THE  LAW  OP  ESTATES. 

gage,  rent  and  manage  the  estate  of  the  testator,  such  have 
powers  conferred  upon  them  by  the  will  of  a  deceased  person, 
far  superior  to  that  of  administrators;  as  a  general  rule  courts 
seldom  interfere  with  the  executor  exercising  the  power  con- 
ferred by  will,  unless  the  abuse  of  such  power  becomes  apparent. 
This  power  conferred  by  will  upon  an  executor  when  it  conforms 
to  and  is  recognized  by  law  cannot  be  transferred  to  an  adminis- 
trator with  the  will  annexed.^  The  title  to  real  estate,  where 
the  will  so  provides  vests  in  the  executor  or  trustee,  while  the 
title  to  real  estate  of  an  intestate  or  one  dying  without  will, 
vests  eo  instanter,  in  the  heirs-at-law,  and  no  other  person  is 
seized  thereof  for  any  purpose,  or  authorized  to  exercise  any 
act  of  ownership  over  it,  save  in  the  case  of  a  guardian  over  the 
estate  of  his  ward.^  The  statute  of  IlUinois  gives  tke  executor 
and  administrator  the  right  to  redeem  real  estate  from  sales 
under  judgments  and  decrees,  but  they  are  also  given  much 
latitude  in  the  exercise  of  a  reasonable  discretion  in  such  mat- 
ters; their  duty  to  redeem  depending  largely  upon  the  circum- 
stances of  each  particular  case  as  it  may  arise;  such,  however, 
are  expected  to  exercise  the  power,  when  the  best  interest  of  the 
estate  demands  they  should  redeem  the  real  estate  from  any 
judgment  or  decree.  On  the  other  hand,  where  it  is  apparent 
the  exercise  of  such  power  would  be  detrimental  to  the  best 
interest  of  the  estate  in  their  hands,  they  may  refuse  to  redeem.^ 
The  statute  directs  that  executors  and  administrators  shall  make 
out  a  full  and  perfect  inventory  of  all  such  real  and  personal 
estate,  and  the  proceeds  thereof,  as  are  committed  to  his  super- 
intendence and  management,  and  as  shall  come  to  his  hands, 
possession  or  knowledge,  discribing  the  quantity,  situation  and 

1 — Stoff  V.   McGinn,   178   111.  55.  Jones  &  Addington's  Supplements 

2— Stone   v.   Wood,   16   111.   177;  thereto.    Vol.    2,    pp.   2353,    2358, 

Hopkins   V.   McCann,   19    111.   113;  2363;  Vol.  4,  p.  753;  Vol.  5,  p.  333, 

People  V.  Brooks,  123  111.  146.  and  cases  cited  under  sections  of 

3 — See    sections    18,    19,    20,    21,  statutes    noted    in    each    volume; 

chapter    77,    entitled    "Judgments  Hurd's   R.    S.    of   111.,    1905,   same 

and  Decrees."     Starr  &  Curtis  An-  sections    and    chapter,    pp.    1255, 

notated   Statutes  of   Illinois,   with  1258. 


EXECUTOR'S    SALE   OF  REAL   ESTATE   UNDER  WILL.    455 

title  of  the  real  estate,  etc.  The  act  also  provides  for  addi- 
tional inventory  if  after  the  making  of  the  first  inventory,  any 
real  or  personal  estate  of  deceased  come  to  their  possession  or 
knowledge.^  Executors  and  administrators  are  chargeable  with 
so  much  of  the  estate  of  the  decedent,  personal  or  real,  as  they, 
after  due  and  proper  diligence,  might  or  shall  receive.  Thus 
under  the  statute  of  Illinois,  w^here  the  personal  estate  is  not 
sufficient  to  pay  the  just  debts  proved  and  allowed  real  estate 
will  be  sold  for  that  purpose  when  the  personalty  has  been 
exhausted.^ 

544.  Sale  of  real  estate  under  will — surviving  executor.  ' '  In 

all  cases,  where  power  is  given  in  any  will  to  sell  and  dispose  of 
any  real  estate,  or  interest  therein,  and  the  same  is  sold  and 
disposed  of  in  the  manner  and  by  the  persons  appointed  in  such 
will,  the  sale  shall  be  good  and  valid;  and  where  one  or  more 
executors  shall  fail  or  refuse  to  qualify  or  depart  this  life  before 
such  sales  are  made,  the  survivor  or  survivors  shall  have  the 
same  power  and  their  sales  shall  be  as  good  and  valid  as  if  they 
all  joined  in  such  sales.  "^ 

545.  Executors  must  qualify  in  order  to  exercise  power  of 
sale.  Executors  who  fail  or  refuse  to  qualify  and  take  out  let- 
ters testamentary  cannot  exercise  a  power  given  them  by  the  will 
to  sell  real  estate  of  the  testator,  and  thereby  bind  the  heirs  or 
devisees."^  Section  97  of  the  Administration  act  has  been  con- 
strued and  given  effect.  It  is  held,  this  provision  of  the  statute 
is  substantially  the  same  as  section  93  of  chapter  109  of  the 

4 — Sections    51,    52,    chapter    3,         6 — Section    97,   chapter   3,    "Ad- 

"Administration  of  Estates."   Starr  ministration  of  Estates."   Starr  & 

&  Curtis  Annotated  Statutes  of  II-  Curtis  Annotated   Statutes  of  Illi- 

linois.    Vol,    1,    pp.    289,    290,   and  nois,    with    Jones    &    Addington's 

cases  cited.  Supplement  thereto.  Vol.  1,  pp.  321, 

5 — Section    58,   chapter   3,   "Ad-  322;  Vol.  4,  p.  41,  and  cases  cited 

ministration  of  Estates."     Starr  &  under   section   of  statute   in   each 

Curtis  Annotated  Statutes  of  Illi-  volume;  Kurd's  R.  S.  of  111.,  1905, 

nois.  Vol.  1,  p.  292,  and  authorities  p.  121. 

cited    under    section    of    statute;         7— Chappell    v.    McKnight,    108 

Kurd's  R.  S.  of  111.,  1905,  p.  114.  111.  570. 


456  THE  LAW  OF  ESTATES. 

statutes  of  1845,  except  that  the  latter  did  not  contain  the  words 
''shall  fail  or  refuse  to  qualify."  But  at  that  time  the  statute 
21  Henry  VIII,  chapter  4,  was  in  force  in  this  State,  which  pro- 
vided, that,  if  any  or  either  of  the  persons,  named  as  executors 
in  the  will,  shall  refuse  to  act,  the  right  and  power  should 
devolve  upon  those  who  should  qualify,  to  execute  the  will,  in 
the  same  manner,  as  all  could  have  done.^  It  seems  to  be  the 
settled  rule  in  Illinois  that,  where  power  is  given,  in  a  will,  to 
several  executors  to  sell  real  estate,  a  sale  by  the  executor,  who 
accepts  and  qualifies  is  valid,  whether  the  power,  conferred  by 
the  will,  be  a  mere  naked  power,  or  a  power  coupled  with  a 
trust,  or  whether  the  power  be  of  a  discretionary  or  mandatory 
character.^  Where  a  testator  gave  all  his  estate  to  his  widow 
for  her  life,  and  directed  that  at  her  death  it  be  disposed  of, 
one-third  to  the  testator's  son,  one-third  to  his  daughter,  A^ 
for  her  life,  the  income  to  be  applied,  by  her  and  her  husband, 
to  her  support,  and  to  the  support  and  education  of  her  four 
children,  and  at  her  death  her  portion  to  be  divided  among  her 
said  children  as  they  should,  respectively,  become  of  age,  and 
the  other  third  to  his  daughter,  B,  for  her  life,  the  income  to  be 
applied  in  the  same  manner  as  with  the  other  daughter.  Testa- 
tor appointed  C,  D  and  E,  his  executors,  and  authorized  them 
to  sell  such  portions  of  his  real  estate  as  they  might  think 
advantageous,  and  make  proper  conveyances.  E  declined  to 
accept  and  qualify.  C  and  D  qualified,  and  the  widow  and  D 
died  without  any  sale  of  the  real  estate  having  been  made : 
Held,  that  C,  the  sole  surviving  executor,  had  full  power  to  sell 
and  convey  any  of  the  lands  of  the  testator  in  the  State  of 
Illinois.io 

8 — Ely  V.  Dix,  118  111.  477.  been     created     has     been     accom- 

9 — Clienfelter   v.    Ayers,    16    111.  plished,  or  has  become  impossible, 

329;    Phalman,   ex'r,  v.   Smith,   23  or   unattainable,   the   power   itself 

111.  448;  Wardwell  v.  McDowell,  31  will  cease  to  exist.     See  Taylor  v. 

111.  364.  Smith,    21    111.    296.      In    the    Ely 

10 — Ely  V.  Dix,  118  111.  477.     In  v.  Dix  case,  a  distinction  is  made 

this   case,  it  was   held   that  when  between    the    doctrine    applied    in 

the  object  for  which  a  power  has  the  Taylor  v.  Smith  case,  the  doc- 


EXECUTOR'S   SALE   OF  REAL   ESTATE  UNDER  WILL.    457 

546,  Administrator  with  will  annexed  must  apply  to  chan- 
cery to  sell  land  in  will.  An  administrator  with  the  will  an- 
nexed is  not  authorized  to  make  a  sale  of  land  by  virtue  of  the 
will ;  such  a  power  in  the  will  is  held  to  be  a  personal  trust  and 
confidence  reposed  by  the  testator  in  the  executor,  and  so  it  is 
held,  without  the  aid  of  a  court  of  chance ly  an  administrator 
de  bonis  nan  or  with  the  will  annexed,  cannot  sell  the  lands  de- 
vised to  such  executor.ii  But  in  line  with  his  duty  as  such 
administrator,  he  may  properly  apply  to  a  court  of  chancery 
to  appoint  trustees  to  sell  land  directed  to  be  sold  in  a  will.^^ 

547.  Death  of  sole  executor — power  conferred  on  adminis- 
trator appointed.  "When  a  sole  or  surviving  executor  or  ad- 
ministrator dies  without  having  fully  administered  the  estate,  if 
there  is  personal  property  not  administered,  or  are  debts  due 
from  the  estate,  or  is  anything  remaining  to  be  performed  in 
the  execution  of  the  will,  the  county  court  shall  grant  letters  of 
administration  with  the  will  annexed,  or  otherwise,  as  the  case 
may  require,  to  some  suitable  person,  to  administer  the  estate 
of  the  deceased  not  already  administered,  and  the  securities  on 
the  bond  of  such  deceased  administrator  shall  be  liable  on  the 
same  to  such  subsequent  administrator  or  to  any  other  person 
aggrieved  for  any  mismanagement  of  the  estate  committed  to  his 
care,  and  such  subsequent  administrator  may  have  and  maintain 
all  necessary  and  proper  actions  against  the  securities  of  such 
formeo*  executor  or  administrator  for  all  such  goods,  chattels, 

trine    of   that   case    not   applying,  such   purpose  lands  may  be   sold, 

where   under   construction   of   the  and  the  money  derived  from  such 

will,  it  directs  or  implies  by  the  sale  invested  to  create  an  income 

language  used,  that  he   intends  a  that  will  give  effect  to  the  inteu- 

fund   to    be   created   for   the    sup-  tion  of  the  testator, 
port    and    education    of    his    chil-         11 — Hall  v.  Irwin,  2  Gilm.   (111.) 

dren,    grand-children    or    others;  176;    Nicoll   v.   Scott,   99    111.   528; 

and    that    such    object    be    accom-  Stoff  v.  McGinn,  178  111.  46. 
plished  after  his  death.     It  there-         12 — Wenner  v.  Thornton,  98  111. 

fore    follows    that    to    accomplish  156;    Longwirth  v.   Riggs,  123   111. 

such    object   an    income    must    be  258;   Stoff  v.  McGinn,  178  111.  55. 
realized   from  his   estate,  and  for 


458  THE  LAW  OF  ESTATES. 

debts  and  credits  as  shall  have  come  to  his  possession  and  are 
withheld  or  may  have  been  wasted,  embezzled  or  misapplied  and 
no  satisfaction  made  for  the  same.     Provided,  that  where  there 
is  still  a  surviving  executor  or  administrator  he  may  proceed  to 
administer  the  estate  unless  otherwise  provided.^  ^     A  will  nomi- 
nated the  testator's  wife  executrix,  and  as  such  she  qualified  and 
acted.     The  provision  of  the  will  being  that  upon  the  death  of 
the  testator's  wife,  K  should  succeed  his  wife  as  executor,  and 
should  "dispose  of  my  real  and  personal  property  to  the  best 
advantage,  as  he  sees  fit,  and  make  distribution  according  to  the 
provisions  of  the  will  and  testament  after  the  death  of  my  wife, 
Sarah,  as  soon  as  possible."    Held,  the  plan  and  purpose  of  the 
testator  was  that  some  one  should  act  as  executor  after  the  death 
of  his  wife,  Sarah.    The  rules  laid  down  by  eminent  text  writer 
cited  in  the  notes  are  given,  which  in  substance  are  to  the  effect. 
"Where  a  testator  appoints  an  executor,  and  provides  that  in 
ease  of  his  death  another  should  be  substituted,  then  on  the  death 
of  the  original  executor,  although  he  has  proved  the  will,  the  ex- 
ecutor so  substituted  may  be  admitted  to  the  office,  if  it  appear  to 
have  been  the  testator's  intention  that  the  substitution  should 
take  place  on  the  death  of  the  original  executor,  whether  happen- 
ing in  the  testator's  lifetime  or  afterwards."    Executors  may  be 
appointed  with  separate  functions,  or  to  succeed  each  other  in 
the  event  that  those  first  named  shall  die,  become  incapacitated 
or  unwilling  longer  to  serve,  or  two  persons  may  be  appointed  to 
act  for  a  definite  period  or  during  the  minority,  or  during  the 
absence  from  the  country  of  one  appointed  executor.     It  was 
under  the  will  in  question  held:    The  only  purpose  that  could 
have  moved  the  testator  to  designate  any  one  to  succeed  his  wife 
in  the  office  of  executor  was,  "that  such  successor  should  take 

13 — As  amended  by  act  approved  Statutes  of  Illinois,  with  Jones  & 
April  1,  1887.  In  force  July  1,  Addington's  Supplements  thereto, 
1887.  Law,  1887,  p.  1.  Section  37,  Vol.  1,  p.  284;  Vol.  4,  p.  34,  and 
chapter  3,  "Administration  of  Es-  cases  cited  under  section  of  stat- 
tates."    Starr  &  Curtis  Annotated    ute  in  each  volume;   Kurd's  R.  S. 

of  111.,  1905,  p.  111. 


EXECUTOR'S   SALE   OF  REAL  ESTATE  UNDER  WILL.    459 

the  property  and  effects  of  his  estate  remaining^  in  the  hands 
of  his  wife  as  executrix  and  life  tenant,  and,  as  his  executor, 
devote  it  to  the  accomplishment  of  the  purpose  to  which  he 
designated  and  indicated  in  his  will  it  should  be  devoted.  "** 
The  duties  and  powers  of  an  administrator  de  bonis  non,  prior 
to  the  amendment  of  section  37  of  the  Administration  Act  cited 
above,  were  restricted  to  the  administration  of  the  estate  of  a 
deceased  person  not  already  administered.^^ 

548.  Revocation  of  letters — death  or  disqualification  of  ex- 
ecutor or  administrator,  etc.  "Where  the  letters  of  one  of  sev- 
eral executors  or  administrators  are  revoked,  or  one  or  more  of 
the  executors  or  administrators  die  or  become  disqualified,  after 
the  execution  of  any  will,  but  before  the  probate  thereof,  or 
one  or  more  of  the  executors  or  administrators  die  or  become 
disqualified  after  their  appointment  by  the  court,  the  court 
shall,  on  petition  of  the  surviving  husband,  or  wife,  or  next 
of  kin  of  the  testator,  or  if  there  are  none  such,  then  upon  the 
petition  of  any  of  the  beneficiaries  named  in  such  will,  appoint 
others  in  their  place,  and  require  additional  bonds  from  the 
new  administrator,  or  administrators;  or  the  survivor,  or  sur- 
vivors, or  such  as  shall  not  have  their  powers  revoked,  shall 
proceed  to  manage  the  estate.  When  the  letters  of  all  of  them 
are  revoked,  or  all  of  such  executors  or  administrators  die 
before  final  settlement  and  distribution  of  the  estate,  adminis- 

14— Kinney  v.  Keplinger,  172  III.  D.)  458;  Despard  v.  Churchill,  53 
449.  See  in  support  of  rules  N.  Y.  192;  Woerner's  Am.  Law  of 
quoted  in  that  case,  Williams  on  Administration,  p.  394. 
Executors,  Vol.  1,  pp.  288,  289;  15— Rowan  v.  Kirkpatrick,  14 
Lomax  on  Executors,  Vol.  1,  p.  111.  1;  Kinney  v.  Keplinger,  172 
172;  Redfield  on  Wills,  Vol.  3,  p.  111.,  pp.  459,  460.  It  has  always 
72;  also  the  following  cases  in  been  the  rule  that  the  adminis- 
support  of  the  rule:  Hartnett  v.  trator  of  a  deceased  executor  does 
Wandell,  60  N.  Y.  346;  Carte  v.  not  succeed  to  the  estate  of  the 
Carte,  3  Atk.  174;  Pemberton  v.  deceased  executor's  testator.  Woer- 
Cooney,  Cr.  Eliz.  164;  the  goods  of  ner's  Am.  Law  of  Administration, 
Wilmot,  2  Roberts  579;  In  re  p.  394;  and  see  also,  2  Black- 
goods  of  Langford,  L.  R.  (I.  P.  &  stone's  Com.  506;  Roanoke  Navi- 
gation Co.  V.  Green,  3  Dev.  L.  434. 


460  THE  LAW  OF  ESTATES. 

tration,  with  the  will  annexed,  or  de  honis  non,  shall  be  granted 
to  the  person  next  entitled  thereto:  Provided,  that  in  making 
any  appointment  under  this  section,  the  court  shall  give  prefer- 
ence to  the  surviving  husband,  or  wife,  or  next  of  kin  of  the 
deceased,  or  beneficiaries  named  in  the  will,  in  the  order 
named.  "16  (As  amended  by  act  approved  and  in  force  March  30, 
1901;  L.  1901,  p.  2.)  In  Penn  v.  Folgery^  will  be  found  a 
discussion  of  the  question,  whether  an  administrator  cum  testa- 
ment o  annexo  has  power  to  execute  and  carry  out  the  provisions 
of  a  will  in  regard  to  powers  and  directions  therein  contained. 
The  court  holding :  ' '  Executors  are  often  required  by  the  terms 
of  the  will,  appointing  them,  to  act  in  a  double  capacity;  first, 
as  executors  by  virtue  of  their  office;  and,  second,  as  agents  or 
trustees  under  a  warrant  of  attorney."  An  executor  is  often 
charged,  not  only  with  the  duties  and  liabilities  appertaining  to 
that  office,  but  also  with  certain  duties  in  the  execution  of  a 
trust,  which  is  imposed  upon  him  by  the  will.  The  general  rule 
is,  that  the  duties  and  powers  of  an  executor,  devolve  upon  the 
administrator  with  the  will  annexed.  But  the  duties  and  pow- 
ers, which  are  imposed  upon  an  executor  as  a  trustee,  are  in 
the  nature  of  a  personal  trust  or  confidence  reposed  in  him  by 
the  testator,  and  do  not  devolve  upon  the  administrator  with 
the  will  annexed,  inasmuch  as  they  cannot  be  delegated.^^ 

549.  Bond  of  former  executor,  etc. — liability.  ''In  all  cases 
where  any  such  executor  or  administrator  shall  have  his  letters 
revoked,  he  shall  be  liable  on  his  bond  to  such  subsequent  admin- 
istrator, or  to  any  other  person  aggrieved,  for  any  mismanage- 
ment of  the  estate  committed  to  his  care ;  and  the  subsequent 
administrator  may  have  and  maintain  actions  against  such  for- 

16 — As  amended  by  act  approved  Supplements    thereto,    Vol.    1,    p. 

and  in  force  March  30,  1901.   Laws  285;  Vol.  4,  p.  34,  and  cases  cited 

1901,  p.  2.     Section  38,  chapter  3.  under  section  of  statute;     Kurd's 

"Administration  of  Estates."     Starr  R.  S.  of  111.,  1905,  p.  111. 

&  Curtis  Annotated  Statutes  of  Illi-  17—182  111.  76. 

nois,    with    Jones    &    Addington's  18— Hall  v.  Irwin,  2  Gilm.  (111.) 

176;  Nicoll  v.  Scott,  99  111.  529. 


EXECUTOR'S   SALE   OF  REAL   ESTATE  UNDER  WILL.    461 

mer  executor  or  administrator  for  all  such  goods,  chattels,  debts 
and  credits  as  shall  have  come  to  his  possession,  and  which  are 
withheld  or  have  been  wasted,  embezzled  or  misapplied,  and  no 
satisfaction  made  for  the  same."!*^  Under  this  section  of  the 
statute,  the  administrator  de  bonis  non  is  entitled  to  maintain  a 
suit  against  the  former  executor  and  the  sureties  on  his  bond, 
for  the  indebtedness  of  such  former  executor  to  the  estate  on 
a<ccount  of  assets  received  by  him  and  converted  to  his  own  use. 
And  in  such  proceeding  averment  and  proof  of  demand  is  not 
necessary.20  It  is  a  rule  of  the  common  law  that  the  powers 
and  the  duties  of  an  administrator  de  bonis  non  are  limited  to 
the  administration  of  such  property  belonging  to  the  decedent's 
estate  as  has  not  already  been  administered  upon  by  the  former 
executor  or  administrator.  The  conversion  of  the  property  of 
an  estate  into  money  by  the  executor  or  the  administrator,  is  an 
administering  upon  such  property,  within  the  meaning  of  the 
foregcfing  rule.  An  administrator  de  boiis  non,  appointed  to  fill 
a  vacancy  caused  by  the  removal  of  an  executor  or  administra- 
tor, may  maintain  any  appropriate  action  or  proceeding  against 
such  removed  executor  or  administrator  for  any  waste,  mis- 
management or  breach  of  duty  in  respect  to  the  estate  during 
the  administration  of  the  latter,  but  not  so  where  the  vacancy 
was  caused  by  death.  In  such  case  the  heirs,  devisees  or  credi- 
tors alone  can  maintain  the  action.21 

550.  Resignation  of  executor  or  administrator — settlement. 
"An  executor  or  administrator  may,  upon  his  petition  and  upon 
giving  such  notice  to  the  legatees,  devisees  or  distributees,  as  the 
court  shall  direct,  be  allowed  to  resign  his  trust  when  it  appears 

19— R.    S.    1845,   p.   552,    sec.    75.  20— Nevitt  v.  Woodburn,  160  111. 

Section    39,    chapter    3,    "Adminis-  214, 

tration  of  Estates."     Starr  &  Cur-  21 — Hanifan  v.  Needles,  108  111. 

tis  Annotated  Statutes  of  Illinois,  403;  Marsh  v.  People,  15  111.  284; 

with  Jones  &  Addington's  Supple-  Duflfin  v.  Abbott,  48  111.  17;   Short 

ments  thereto,  Vol.  1,  p.  285;  Vol.  v.  Johnson,  25  111.  489;  Rowan  v. 

4,  p.  35;  Kurd's  R.  S.  of  111.,  1905,  Kirkpatrick,   14  111.  1;   Newhall  v. 

p.   111.  Turner,  14  111.  338. 


462  THE  LAW  OF  ESTATES. 

to  the  county  court  to  be  proper ;  and  upon  such  resignation  the 
court  shall  grant  letters  of  administration,  with  the  will  annexed, 
or  de  bonis  non,  to  some  suitable  person,  to  administer  the  goods 
and  estate  not  already  administered.  But  no  administrator  or 
executor  shall  be  discharged  till  he  shall  have  made  full  settle- 
ment with  the  court  and  complied  with  its  orders,  and  shall 
deliver  over  to  his  successor  all  money,  chattels  and  effects  of 
the  estate  in  his  hands  not  paid  over  according  to  the  orders  of 
the  court."--  In  Smith  v.  Smith,^^  this  section  being  under  con- 
sideration, it  was  held :  Gives  the  county  court  the  power  to 
allow  an  executor  to  resign  his  trust,  when  it  appears  to  that 
court  to  be  proper.  It  is  to  be  presumed  that  the  county  court 
did  its  duty,  and  acted  upon  proper  considerations  when  it 
accepted  such  resignation;  especially  as  the  sole  devisee  under 
the  will,  consented  to  such  resignation.  The  matter  of  the  sub- 
sequent accounting  was  a  matter  to  be  disposed  of  by  the  coiinty 
court. 

22— Laws  of  1849,  p.  100,  sec.  1;  cited;    Vol.    4,    p.    35,    and    cases 

1853,    p.   163,   sec.   1.     Section   40,  cited;  Kurd's  R.  S.  of  111.,  1905,  p. 

chapter  3,  "Administration  of  Es-  111. 

tates."     Starr  &  Curtis  Annotated         23—168   111.  494;   see  also  Short 

Statutes  of  Illinois,  with  Jones  &  v.  Johnson,   25  111.  489;    Marsh  v. 

Addington's    Supplements    thereto,  People,   15   111.   284;    Davenport  v. 

Vol.    1,    pp.    285,    286,    and    cases  Reynolds,  6  111.  App.  532. 


CHAPTER  XXIX 

SALE  OF  REAL  ESTATE  TO  PAY  DEBTS 


Sec.  Sec. 

551.  Sale    of    real    estate    to    pay     572. 

debts,  statute. 

552.  Sale  of  realty  coerced,  statute. 

553.  Mode  of  commencing  proceed- 

ings, petition,   parties,  stat- 
ute. 

554.  Form  of  petition,  what  should 

be  set  forth,  statute. 

555.  Practice,     the     same     as     in 

chancery  cases,  statute. 

556.  Summons,    when    returnable, 

statute. 

557.  Service  of  summons,  statute. 

558.  Notice     by     publication     and 

mail,  statute. 

559.  Publishing  of  notice   default, 

statute. 

560.  Of   persons   under    disability, 

statute. 

561.  Hearing,  decree  of  sale,  stat- 

ute. 

562.  Conveyance,  statute. 

563.  Sale,  time  of,  notice,  penalty, 

terms,  return,  confirmation, 
statute. 

564.  Proceeds  of  sale,  statute. 

565.  Sale  of  land  not  fully  paid  for, 

completing    purchase,    stat- 
ute. 

566.  Miscellaneous  provisions,  mis- 

takes, etc.,  statute. 

567.  Contracts  of  decedent,  statute. 

568.  Books  of  account,  statute. 

569.  Insolvent  estate,  statute. 

570.  Power  of  court,  statute. 

571.  Sheriff's  duties,  fees,  statute. 

463 


573. 
574. 

575. 

576. 

577. 

578. 

579. 
580. 


581. 

582. 

583. 

584. 
585. 


Compensation  of  executors, 
etc.,  statute. 

The  act  construed,  statute. 

The  early  statutes  relating  to 
administrators'  sales  of  real 
estate. 

Lands  partly  paid  for  by  de- 
cedent, sale  or  completion 
of  purchase. 

Relation  of  administrator  to 
the  real  estate,  rights  of 
heirs. 

Jurisdiction  and  powers  of 
probate  court  relating  to 
sale  of  real  estate  to  pay 
debts,  before  act  of  1887. 

Jurisdiction  and  powers  of 
probate  courts  in  such  mat- 
ter since  the  amendatory  act 
of  1887. 

To  give  jurisdiction  to  sell, 
probate  court  must  find  de- 
ficiency of  personal  assets. 

Jurisdiction  of  person  and 
subject  matter  of  suit  in 
such  matters. 

Hearing  and  decree,  overplus. 

The  homestead  and  dower 
rights. 

Service,  summons  and  notice 
by  publication. 

Notice,    time    and    terms    of 

sale. 
The   court   must   confirm   the 

sale.    The  report  of  sale. 


464  THE  LAW  OF  ESTATES. 

Sec.  551.  Sale  of  real  estate  to  pay  debts.  The  Administra- 
tion Act  provides:  "When  the  executor  or  administrator  has 
made  a  just  and  true  account  of  the  personal  estate  and  debts 
to  the  county  court,  and  it  is  aycertained  that  the  personal  estate 
of  a  decedent  is  insufficient  to  pay  the  just  claims  against  his 
estate,  and  there  is  real  estate  to  which  such  decedent  had  claim 
or  title,  such  real  estate,  or  such  portion  as  may  be  necessary 
to  satisfy  the  indebtedness  of  such  decedent,  and  the  expenses 
of  administration,  may  be  sold  in  the  manner  herein  provided. ' ' 

552.  Sale  of  realty  coerced.  Section  130  of  the  same  chap- 
ter is  as  follows:  ''Whenever  real  estate  is  required  to  be  sold 
for  the  payment  of  debts,  the  court  may  make  all  necessary 
orders  to  coerce  the  executor  or  administrator  to  make  imme- 
diate application  for  an  order  to  sell  such  real  estate,  "^ 

553.  Mode  of  commencing  proceedings,  petition,  parties. 
*'The  mode  of  commencing  the  proceedings  for  the  sale  of  real 
estate  in  such  cases  shall  be  by  the  filing  of  a  petition  by  the 
executor  or  administrator  in  the  circuit  court  or  the  county 
court  of  the  county  where  letters  testamentary  or  of  adminis- 
tration were  issued.  The  widow,  heirs  and  devisees  of  the  testa- 
tor or  intestate,  and  the  guardians  of  any  such  as  are  minors, 
and  the  conservator  of  such  as  have  conservators,  and  all  per- 
sons holding  liens,  against  the  real  estate  described  in  the  peti- 
tion, or  any  part  thereof,  or  having  or  claiming  any  interest 
therein  in  possession  or  otherwise  shall  be  made  parties.  If  there 
are  persons  interested  in  the  premises  whose  names  are  not 
known,  then  they  shall  be  made  parties  by  the  name  of  unknown 
owners. '  '^ 

1— Section    98,   chapter   3,   "Ad-  cited;   Kurd's  R.   S.  of  111.,   1905, 

ministration  of  Estates."     Starr  &  p.  121. 

Curtis  Annotated  Statutes  of  Illi-        2 — As  amended  by  act  approved 

nois,    with    Jones    &    Addington's  June   15,   1887.     In   force  July   1, 

Supplements    thereto.    Vol.    1,    pp.  1887.     Laws  of  1887,  page  3.     Sec- 

322,  374,  and  cases  cited  under  sec-  tion  99,  chapter  3,  "Administration 

tions  of  statute;  Vol.  4,  p.  41,  and  of   Estates."      Starr   &    Curtis   An- 

cases  cited;  Vol.  5,  p.  19,  and  cases  notated   Statutes   of  Illinois,   with 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  465 

554.  Form  of  petition — what  should  be  set  forth.     ''The 

petition  shall  set  forth  the  facts  and  circumstances  on  which  the 
petition  is  founded,  in  which  shall  be  stated  the  amount  of  claims 
allowed,  with  an  estimate  of  the  amount  of  just  claims  to  be  pre- 
sented, and  it  shall  also  contain  a  statement  of  the  amount  of 
personal  estate  which  has  come  to  the  hands  of  the  petitioner, 
and  the  manner  in  which  he  has  disposed  of  the  same,  with  a 
statement  of  the  amount  of  claims  paid, a  particular  description 
of  the  real  estate  sought  to  be  sold,  and  the  nature  and  extent  of 
all  liens  upon  said  real  estate  so  far  as  the  same  may  be  known 
to  the  petitioner.  The  petition  shall  be  signed  by  the  executor 
or  administrator  and  verified  by  his  affidavit,  and  shall  be  filed 
at  least  ten  days  before  the  commencement  of  the  term  of  court 
at  which  the  application  shall  be  made.^ 

555.  Practice,  the  same  as  in  chancery  cases.  "Such  ap- 
plication shall  be  docketed  as  other  causes,  and  the  petition  may 
be  amended,  heard  or  continued  for  notice  or  other  cause,  and 
the  practice  in  such  cases  shall  be  the  same  as  in  cases  in 
chancery.  The  court  may  direct  the  sale  of  such  real  estate, 
disincumbered  of  all  mortgage,  judgment  or  other  money  liens 
that  are  due,  and  may  provide  for  the  satisfaction  of  such  liens 
out  of  the  proceeds  of  sale,  and  may  also  settle  and  adjust  all 
equities  and  all  questions  of  priority  between  all  parties  inter- 
ested therein,  and  may  also  investigate  and  determine  all  ques- 
tions of  conflicting  or  controverted  titles  arising  between  any 
of  the  parties  to  such  proceeding,  and  may  remove  clouds  from 
the  title  to  any  real  estate  sought  to  be  sold,  and  invest  pur- 
chasers with  a  good  and  indefeasible  title  to  the  premises  sold. 

Jones  &  Addington's  Supplements  tion  100,  chapter  3,  "Administra- 

thereto,  Vol.   1,   p.   325,  and   cases  tlon   of  Estates."     Starr  &  Curtis 

cited  under  section  of  statute;  Vol.  Annotated     Statutes     of     Illinois, 

4,  p.   41,  and  cases  cited;    Kurd's  with  Jones  &  Addington's  Supple- 

R.  S.  of  111.,  1905,  p.  121.  ments  thereto,  Vol.  1,  p.  327,  and 

3 — As  amended  by  act  approved  cases  cited ;  Vol.  4,  p.  42,  and  cases 

June   15,   1887.      In   force   July   1,  cited;    Kurd's  R.   S.  of   111.,  1905, 

1887.     Laws  of  1887,  page  3.     Sec-  p.  121. 
30 


466  THE  LAW  OF  ESTATES. 

The  court  may,  with  the  assent  of  auy  mortgagee  of  the  whole 
or  any  part  of  such  real  estate,  whose  debt  is  not  due,  sell  such 
real  estate  disincumbered  of  such  mortgage,  and  provide  for  the 
payment  of  such  mortgage  out  of  the  proceeds  of  such  sale; 
and  may  also,  with  the  assent  of  the  person  entitled  to  an  estate 
in  dower  or  by  curtsy,  or  for  life  or  for  years  or  of  home- 
stead to  the  whole  or  in  part  of  the  premises,  who  is  a  party  to 
the  suit,  sell  such  real  estate  with  the  rest.  But  such  assent  shall 
be  in  writing  and  signed  by  such  person  and  filed  in  the  court 
wherein  the  said  proceedings  are  pending.  When  any  such  es- 
tate is  sold,  the  value  thereof  shall  be  ascertained  and  paid  over 
in  gross,  or  the  proper  portion  of  the  funds  invested,  and  the 
income  paid  over  to  the  party  entitled  thereto  during  the  con- 
tinuance of  the  estate."* 

556.  Summons — ^when  returnable.  "Upon  the  filing  of  the 
petition,  the  clerk  of  the  court  where  the  same  may  be  filed  shall 
issue  a  summons,  directed  to  the  sheriff  of  the  county  in  which 
the  defendant  resides,  if  the  defendant  is  a  resident  of  this  State, 
requiring  him  to  appear  and  answer  the  petition  on  the  return 
day  of  the  summons;  and  where  there  are  several  defendants, 
residing  in  different  counties,  a  separate  summons  shall  be  issued 
to  each  county,  including  all  the  defendants  residing  therein. 
Every  summons  shall  be  made  returnable  to  the  first  tenn  of  the 
county  court  after  the  date  thereof,  unless  the  petition  is  filed 
within  ten  days  immediately  preceding  any  term,  in  which  case 
the  summons  shall  be  returnable  to  the  next  term  thereafter.^ 


4 — As  amended  by  act  approved  cited;    Kurd's  R.  S.  of  111.,  1905, 

June   15,    1887.     In  force   July   1,  p.  121. 

1887.     Laws   of   1887,   p.   3.     Sec-  5 — Section  101,   chapter  3,  "Ad- 

tion   101,  chapter   3,   "Administra-  ministration  of  Estates."     Starr  & 

tion  of  Estates."     Starr  &  Curtis  Curtis  Annotated  Statutes  of  Illi- 

Annotated     Statutes     of     Illinois,  nois,    with    Jones    &    Addington's 

with  Jones  &  Addington's  Supple-  Supplements  thereto,  Vol.  1,  p.  329, 

ments  thereto,  Vol.  1,  p.  327,  and  and  cases  cited;  Vol.  4,  p.  42,  and 

cases  cited;  Vol.  4,  p.  42,  and  cases  cases  cited;   Hurd's  R.   S.   of  111., 

1905,  p.  12L 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  '467 

557.  Service  of  summons.  "The  service  of  summons  shall 
be  made  by  reading  thereof  to  the  defendant,  or  leaving  a  copy 
thereof  at  the  usual  place  of  abode,  with  some  member  of  the 
family  of  the  age  of  ten  years  and  upwards,  and  informing  such 
person  of  the  contents  thereof,  which  service  shall  be  at  least 
ten  days  before  the  return  of  such  summons."* 

558.  Notice  by  publication  and  mail.  ' '  Whenever  any  peti- 
tioner or  his  attorney  shall  file,  in  the  office  of  the  clerk  of  the 
court  in  which  his  petition  is  pending,  an  affidavit  showing  that 
any  defendant  resides  ov  hath  gone  out  of  this  State,  or  on  due 
inquiry  cannot  be  found,  or  is  concealed  within  this  State,  so 
that  process  cannot  be  served  upon  him,  and  stating  the  place 
of  residence  of  such  defendant,  if  known,  or  that,  upon  diligent 
inquiry,  his  place  of  residence  cannot  be  ascertained,  the  clerk 
shall  cause  publication  to  be  made  in  some  newspaper  printed 
in  his  coimty,  and  if  there  is  no  newspaper  published  in  his 
county,  then  in  the  nearest  newspaper  published  in  this  State, 
containing  notice  of  the  filing  of  the  petition,  the  names  of  the 
parties  thereto,  the  title  of  the  court,  and  the  time  and  place  of 
the  return  of  summons  in  the  case,  and  a  description  of  the 
premises  described  in  the  petition ;  and  he  shall  also,  within  ten 
days  of  the  first  publication  of  such  notice,  send  a  copy  thereof 
by  mail,  addressed  to  such  defendant  whose  place  of  residence  is 
stated  in  such  affidavit.  The  certificate  of  the  clerk  that  he  has 
sent  such  notice  in  pursuance  of  this  section,  shall  be  evidence. '  ''^ 

559.  Publishing  of  notice — default.  "The  notice  required 
in  the  preceding  section  may  be  given  at  any  time  after  the 
filing  of  the  petition,  and  shall  be  published  at  least  once  in 
each  week  for  four  successive  weeks,  and  no  default  or  pro- 

6— Section  102,  chapter  3,  "Ad-  7 — Section  104,  chapter  3,  "Ad- 
ministration of  Estates."  Starr  ministration  of  Estates."  Starr  & 
&  Curtis  Annotated  Statutes  of  II-  Curtis  Annotated  Statutes  of  Illi- 
linois,  Vol.  1,  p.  329,  and  cases  nois.  Vol.  1,  p.  329,  and  cases  cited ; 
cited;  Kurd's  R.  S.  of  111.,  1905,  p.  Kurd's  R.  S.  of  111.,  1905,  p.  122. 
122;  Ottenger  v.  Specht,  162  111. 
182. 


468  THE  LAW  OF  ESTATES. 

ceeding  shall  be  taken  against  any  defendant  not  served  with 
summons,  and  not  appearing  unless  forty  days  shall  in- 
tervene between  the  first  publication,  as  aforesaid,  and  the  first 
day  of  the  term  at  which  such  default  or  proceeding  is  proposed 
to  be  taken.  "^ 

560.  Of  persons  under  disability.  "When  it  appears  that 
any  of  the  persons  required  to  be  made  parties  defendant,  who 
have  been  served  with  summons  or  notified  as  aforesaid,  are 
minors,  under  the  age  of  twenty-one  years  if  males,  or  eighteen 
years  if  females,  without  a  guardian  resident  in  this  State,  or 
are  persons  having  conservators,  or  where  such  guardian,  if  any, 
or  conservator,  shall  not  be  personally  served  with  summons  or 
shall  not  appear,  the  court  shall  appoint  a  guardian  ad  litem, 
who  shall  appear  and  defend  in  behalf  of  such  minors,  and  be 
allowed  such  compensation  as  may  be  fixed  by  the  court. ^ 

'  561.  Hearing — decree  of  sale — overplus.  "Upon  hearing 
the  cause  upon  the  issues  formed  or  taken,  the  court  shall  hear 
and  examine  the  allegations  and  proofs  of  the  parties  and  of  all 
other  persons  interested  in  the  estate  who  may  appear  and 
become  parties;  and  if,  upon  due  examination,  the  court  shall 
find  that  the  executor  or  administrator  has  made  a  just  and 
true  account  of  the  condition  of  the  estate,  and  that  the  personal 
estate  of  the  decedent  is  not  sufficient  to  pay  the  debts  against 
such  estate,  the  court  shall  ascertain,  as  nearly  as  can  be,  the 
amount  of  deficiency,  and  how  much  of  the  real  estate  described 
in  the  petition  it  is  necessary  to  sell  to  pay  such  deficiency, 
with  the  expenses  of  administration  then  due  or  to  accrue  and 
make  a  decree  for  the  sale  thereof:    Provided,  that  where  any 

8 — Laws  of  1857,  p.  138,  sec.  5.  sec.  9,  chapter  100,  entitled  "No- 
Section  105,  chapter  3,  "Adminis-  tices;"  Kurd's  R.  S.  of  111.,  p.  1413. 
tration  of  Estates."  Starr  &  Cur-  9 — Laws  of  1857,  p.  139,  sec.  6. 
tis  Annotated  Statutes  of  Illinois,  Section  106,  chapter  3,  "Adminis- 
with  Jones  &  Addington's  Supple-  tration  of  Estates."  Starr  &  Cur- 
ments  thereto,  Vol.  1,  p.  330;  Vol.  tis  Annotated  Statutes  of  Illinois, 

4,  p.  42,  and  cases  cited;  Kurd's  R.  Vol.    1,    p.    330,    and    cases    cited; 

5.  of  111.,   1905.  p.   122.     See  also     Kurd's  R.  S.  of  111.,  1905,  p.  122. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  469 

houses  and  lots,  or  other  real  estate,  are  so  situated  that  a  part 
thereof  cannot  be  sold  without  manifest  prejudice  to  the  heirs, 
devisees  or  owner,  the  court  may  order  the  sale  of  the  whole 
or  such  part  as  it  may  deem  best,  and  the  overplus  arising  from 
such  sale  shall  be  distributed  among  the  heirs  and  devisees,  own- 
ers, or  such  other  persons  as  may  be  entitled  thereto."^** 

562.  Conveyances.  "All  such  sales  of  real  estate  shall  be 
made  and  conveyances  executed  for  the  same,  by  the  executor  or 
administrator  applying  for  such  order,  and  shall  be  valid  and 
effectual  against  the  heirs  and  devisees  of  such  decedent,  and 
all  others  claiming  by,  through,  or  under  him  or  them.  In  case 
of  the  death  of  the  executor  or  administrator  applying  for  an 
order  of  sale  before  conveyance  is  made,  the  administrator  de 
bonis  non  shall  proceed  in  the  premises  and  make  conveyances 
in  the  same  manner  as  if  he  had  originally  applied  for  such 
order — which  conveyance  shall  be  good  and  valid."** 

563.  Sale — time  of — notice — penalty — terms — ^return — con- 
firmation. "No  lands  or  tenements  shall  be  sold  by  virtue  of 
any  such  order  of  the  county  court,  unless  such  sale  is  at  pub- 
lic vendue,  and  between  the  hours  of  ten  o'clock  in  the  fore- 
noon and  five  o'clock  of  the  afternoon  of  the  same  day,  nor 
unless  the  time,  place  and  terms  of  holding  such  sale  were  previ- 
ously published  for  the  space  of  four  weeks,  by  putting  up 
notices  thereof  in  at  least  four  of  the  most  public  places  in  the 
county  where  such  real  estate  shall  be  sold,  and  also  by  causing 
a  similar  notice  thereof  to  be  published  four  successive  weeks 

10— Laws  of  1857,  p.  139,  sec.  8.  11— Laws  of  1857,  p.  139,  sec.  9. 
Section  107,  chapter  3,  "Adminis-  Rev.  Stat.  1845,  p.  559,  sec.  105. 
tration  of  Estates."  Starr  &  Cur-  Section  108,  chapter  3,  "Adminis- 
tis  Annotated  Statutes  of  Illinois,  tration  of  Estates."  Starr  &  Cur- 
with  Jones  &  Addington's  Supple-  tis  Annotated  Statutes  of  Illinois, 
ments  thereto.  Vol.  1,  p.  331,  and  with  Jones  &  Addington's  Supple- 
cases  cited;  Vol.  4,  p.  42,  and  cases  ments  thereto.  Vol.  1,  p.  108,  and 
cited;  Vol.  5,  pp.  19,  20,  and  cases  cases  cited;  Vol.  4,  p.  42,  and  cases 
cited;  Kurd's  R.  S.  of  111.,  1905,  cited;  Vol.  5,  p.  20,  and  cases  cited; 
p.  122.  Kurd's  R.  S.  of  111.,  1905,  p.  122. 


470  THE  LAW  OF  ESTATES. 

prior  to  the  sale,  in  some  newspaper  published  in  such  county, 
or  if  there  be  no  such  newspaper  then  in  such  other  newspaper 
in  this  State  as  the  court  shall  direct,  nor  unless  such  real  estate 
shall  be  described  with  common  certainty  in  such  notices.  And 
if  any  executor  or  administrator,  so  ordered  to  make  sale  of 
any  real  estate,  shall  sell  the  same  contrary  to  the  provisions  of 
this  act,  he  shall  forfeit  and  pay  the  sum  of  five  hundred  dol- 
lars, to  be  recovered  by  an  action  of  debt,  in  the  name  of  the 
People  of  the  State  of  Illinois,  for  the  use  of  any  person  inter- 
ested, W'ho  may  prosecute  for  the  same :  Provided,  that  no  such 
offense  shall  affect  the  validity  of  such  sale:  And  provided 
further,  that  such  executor  or  administrator  may  sell  the  same 
on  a  credit  of  not  less  than  six,  nor  more  than  twelve  months, 
by  taking  notes,  with  good  personal  security  and  a  mortgage,  or 
sale  mortgage,  or  the  premises  sold,  to  secure  the  payment  of 
the  purchase  money.  It  shall  be  the  duty  of  the  executor  or 
administrator  making  such  sale,  on  or  before  the  firet  day  of 
the  next  term  of  the  court  thereafter,  to  file  in  the  office  of 
the  clerk  of  said  court  a  complete  report  of  said  sale,  giving 
a  description  of  the  premises  sold,  to  whom,  w'here,  and  upon 
what  terms  sold,  and  a  general  statement  of  the  manner  in  which 
the  terms  of  the  decree  were  executed.  Any  person  interested 
in  the  premises  sold,  and  any  creditor  of  the  estate,  may  file 
exceptions  to  such  report,  and  upon  the  hearing  thereof  the 
court  may  approve  such  report  and  confirm  the  sale,  or  dis- 
approve the  same  and  order  the  premises  to  be  re-sold.  "^^ 

564.     Proceeds   of   sale.     ''When   real   estate   is   sold,   the 
moneys  arising  from  such  sale  shall  be  received  by  the  executor 

12 — As  amended  by  act  approved  4,  pp.  42,  43,  and  cases  cited  under 

April   7,   1875.     In   force    July    1,  section  of  statute  in  each  volume; 

1875.     R.  S.  1845,  p.  559.  sec.  106.  Kurd's  R.  S.  of  111.,  1905,  p.   123. 

Laws  of  1875,  page  1,  sec.  1.     Sec-  See  also  sec.  48,  chapt.  22,  "Chan- 

tion   109,  chapter   3,   "Administra-  eery,"  Starr  &  Curtis,  etc..  Vol.  1, 

tion  of  Estates."     Starr  &  Curtis  p.   592;   Vol.   4,   p.   105,  and   cases 

Annotated     Statutes     of     Illinois,  cited  under  section   of  statute   in 

with  Jones  &  Addington's  Supple-  each  volume;  Kurd's  R.  S.  of  111., 

ments  thereto,  Vol.  1,  p.  333;  Vol.  1905,  p.  233. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  471 

or  administrator  applying  for  the  order  to  sell,  and  shall  be 
assets  in  his  hands  for  the  payment  of  debts,  and  shall  be  applied 
in  the  same  manner  as  assets  arising  from  the  sale  of  personal 
property.  "13 

565.    Sale  of  land  not  fully  paid  for — completing  purchase. 

"In  all  cases  where  a  decedent  is  seized  of  a  legal  or  equitable 
title  to  real  estate,  the  payment  whereof  has  not  been  completed, 
and  the  estate  of  such  decedent  is  unable  to  make  complete 
payment  therefor,  with  advantage  to  such  estate,  the  adminis- 
trator or  executor  may  sell  or  dispose  of  such  real  estate  upon 
the  order  of  the  county  court,  and  the  money  arising  from 
such  sales  shall  be  assets  in  the  hands  of  such  executor  or  ad- 
ministrator, as  in  other  eases.  But  in  all  cases  where  the  estate 
of  any  such  decedent  shall  be  solvent,  and  such  lands  as  afore- 
said may  be  paid  for  without  prejudice  to  the  creditors,  heirs 
and  devisees  of  the  estate,  the  executor  or  administrator  shall 
complete  the  payment  for  the  same  out  of  the  proceeds  of  the 
personal  property,  in  the  name  of  the  heirs  or  legal  representa- 
tives of  the  decedent  entitled  thereto;  and  he  shall  be  allowed 
a  credit  for  the  amount  of  such  payments,  and  all  reasonable 
expenses  incurred  in  making  the  same,  upon  final  settlement  of 
such  estate:  Provided,  that  the  provisions  of  this  section  shall, 
in  nowise,  interfere  with  the  provisions  of  any  last  will  or  testa- 
ment. "^^  Where  the  decedent  is  seized  of  the  legal  or  equit- 
able title  to  land,  payment  for  which  has  not  been  completed, 
and  cannot  be  made  by  the  estate  to  its  advantage,  the  probate 
court,  under  section  111  of  the  Administration  Act,  may  ordor 

13— Section  110,  chapter  3,  "Ad-  lands   (R.  S.  of  1845,  p.  559,   sec. 

ministration  of  Estates."     Starr  &  111,    p.    560,   sec.   112,   relating   to 

Curtis    Annotated    Statutes    of    II-  complete      purchase      of      public 

linois.    Vol.    1,   p.    336,   and    cases  lands).     See  Starr  &  Curtis  Anno- 

cited;    Kurd's  R.   S.  of  111.,   1905,  tated    Statutes    of    Illinois,    with 

p.  123.  Jones  &  Addington's   Supplements 

14 — Section  111,  chapter  3,  "Ad-  thereto.  Vol.   1,   p.   336,  and  cases 

ministration    of    Estates."      This  cited;    Vol.    4,    p.    43,    and    cases 

section,  rewritten  and  extended  to  cited;    Kurd's  R.   S.   of  111.,   1905, 

all  cases  of  complete  purchase  of  p.  123. 


472  THE  LAW  OF  ESTATES. 

a  sale  of  the  land;  but  the  purchaser  at  the  sale  merely  takes 
the  place  of  the  decedent  and  his  heirs,  the  purchaser  being 
entitled  to  a  conveyance  upon  payment  of  the  balance  due  on 
the  purchase  priee.^^ 

566.  Miscellaneous  provisions,  sections  of  the  same  chapter 
— mistake,  etc.  *'No  executor  or  administrator,  or  his  security, 
shall  be  chargeable  beyond  the  assets  of  the  testator  or  intestate, 
by  reason  of  any  omission  or  mistake  in  pleading,  or  by  false 
pleading  of  such  executor  or  administrator.  "^^ 

567.  Contracts  of  decedent.  "All  contracts  made  by  the 
decedent  may  be  performed  by  the  executor  or  administrator 
when  so  directed  by  the  county  court.  "^'^ 

568.  Books  of  account.  "The  books  of  account  of  any 
deceased  person  shall  be  subject  to  the  inspection  of  all  persons 
interested  therein,  "^^ 

569.  Insolvent  estate.  "If,  after  the  expiration  of  two  years 
from  the  time  administration  is  granted  on  an  estate,  such  estate 
is  found  to  he  insolvent,  it  shall  be  so  entered  of  record  by  the 
county  court,  and  such  order  (being)  made,  no  action  shall  be 
maintained  against  the  executor  or  administrator  of  such  estate, 
except  at  the  costs  of  the  party  suing;  but  persons  entitled 
thereto  shall  receive  their  proportions  of  such  estate  as  herein 
provided.  "1^ 

15— Fitzgerald  v.  Turner,  223  111.  cited;    Kurd's  R.  S.  of  111.,  1905, 

322.  p.   126;    Wheeler  v.  Wheeler,   105 

16— Section  126,  chapter  3,  "Ad-  111.  App.  51. 

ministration    of    Estates."      Starr  18 — Section  128,  chapter  3,  "Ad* 

&  Curtis  Annotated  Statutes  of  II-  ministration  of  Estates."     Starr  & 

linois.  Vol.   1,   p.   347,   and   cases  Curtis  Annotated  Statutes  of  Illi- 

cited;    Kurd's  R.   S.   of   111.,   1905,  nois,  Vol.  1,  p.  347,  and  cases  cited; 

p.  126.  Kurd's  R.  S.  of  111.,  1905,  p.  126. 

17— Section  127,  chapter  3,  "Ad-  19— Section  129,  chapter  3,  "Ad- 
ministration of  Estates."  Starr  &  ministration  of  Estates."  Starr  & 
Curtis  Annotated  Statutes  of  lUi-  Curtis  Annotated  Statutes  of  Illi- 
nois,   Vol.    1,    p.    347,    and    cases  nois.  Vol.  1,  p.  347;   Kurd's  R.  S. 

of  111.,  1905,  p.  126, 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  473 

570.  Power  of  court.  "County  courts  shall  have  power  to 
enforce  the  observance  of  all  orders,  decisions,  judgments  and 
decrees  made  by  them  in  discharge  of  their  duties  under  this 
act;  and  they  may  issue  attachments  for  contempt  offered  such 
court  or  its  process,  by  any  executor,  administrator,  witness  or 
other  person;  and  may  fine  and  Imprison,  or  either,  all  such 
offenders,  in  like  manner  as  the  circuit  courts  may  do  in  similar 
cases. '  '20 

571.  Sheriff's  duties— fees.  "The  sheriff  shall,  when  re- 
quired by  the  court,  attend  all  sessions  of  said  court,  either  by 
himself  or  deputy,  and  shall  preserve  good  order  in  the  court, 
and  execute  all  writs  of  attachments,  sununonses,  subpoenas, 
citations,  notices  and  other  processes  which  may,  at  any  time, 
be  legally  issued  by  such  court,  and  make  return  thereof.  And 
such  sheriff'  shall  be  entitled  to  the  same  fees  as  he  is  allowed 
for  similar  services  in  the  circuit  court.  "^^ 

572.  Compensation  of  executors,  etc.  ''Executors  and  ad- 
ministrators shall  be  allowed  as  compensation  for  their  services 
a  sum  not  exceeding  six  per  centum  on  the  amount  of  personal 
estate,  and  not  exceeding  three  per  centum  on  the  money  arising 
from  the  sale  of  real  estate,  with  such  additional  allowances  for 
costs  and  charges  in  collecting  and  defending  the  claims  of  the 
estate  and  disposing  of  the  same,  as  shall  be  reasonable.  "^2 

573.  The  act  construed.  *'A11  the  provisions  in  this  act 
relative  to  an  executor  or  administraitor  shall  apply  and  ex-tend. 

20 — Section  131,  chapter  3,  "Ad-  sec.    19,    chapter    125,    "Sheriffs"; 

ministration  of  Estates."     Starr  &  Kurd's  R.  S.  of  111.,  1905,  pp.  628, 

Curtis  Annotated  Statutes  of  lUi-  1878. 

nois,  Vol.  1,  p.  348,  and  cases  cited;  22 — Section  133,  chapter  3,  "Ad- 

Hurd's  R.  S.  of  111.,  p.  126.  ministration  of  Estates."     Starr  & 

21 — Section  132,  chapter  3,  "Ad-  Curtis  Annotated   Statutes  of  Illi- 

ministration  of  Estates."     Starr  &  nois,    with    Jones    &    Addington's 

Curtis  Annotated  Statutes  of  Illi-  Supplements  thereto,  "Vol.  1,  p.  348, 

nois,  Vol.  1,  p.  348;   Kurd's  R.  S.  and  cases  cited;  Vol.  4,  p.  45,  and 

of  111.,  1905,  p.  126.     See  also  sec-  cases  cited;    Kurd's  R.   S.  of  111,, 

tion  9,  chapter  37,  "Courts";   also  1905,  p.  126. 


474  THE  LAW  OF  ESTATES. 

to  an  executrix  or  administratrix,  or  executors  or  administrators, 
and  vice  versa,  unless  otherwise  expressly  provided  for;  and 
whenever  the  singular  number  or  the  masculine  gender  is  men- 
tioned, the  provisions  shall  apply  to  two  or  more,  and  to  the 
feminine  gender,  as  the  case  may  require;  and  this  act  shall 
be  liberally  construed  so  that  its  true  intent  and  meaning  may 
be  fully  carried  out.''^^ 

574.  The  early  statutes  relating  to  administrators'  sales  of 
real  estate.  Prior  to  the  amendments  of  the  administration 
Act  in  1887,  there  was  much  conflict  growing  out  of  adminis- 
trator's sales  of  real  estate.  The  early  statutes  were  narrow  and 
insufficient  and  did  not  confer  upon  county  courts  sufficient 
power  to  enable  such  courts  to  furnish  by  their  decrees  and 
proceeding  in  this  respect  a  popular  and  satisfactory  title. 
In  fact  under  the  early  statutes,  one  was  constantly  in  doubt 
when  purchasing  at  administrator's  sales,  whether  or  not  in 
reality  he  purchased  lands  or  a  law  suit.  But  in  the  year  1887 
and  since,  the  legislature  of  this  State  by  its  combined  wisdom 
enacted  laws,  conferring  upon  coimty  and  probate  courts  in 
such  matters  sufficient  power  to  make  titles  derived  from  admin- 
istrator's sales  absolutely  safe  and  good.  The  decrees  of  the 
county  courts  having  probate  jurisdiction  and  probate  courts, 
carry  with  them  restored  confidence  and  a  generally  safe,  sure 
and  merchantable  title  follows  such  sales  into  the  purchaser; 
particularly  is  this  so,  if  the  existing  statutes  be  strictly  fol- 
lowed in  such  proceedings.  And  ^till  better  the  Supreme  Court 
of  this  State  in  its  decisions  since  the  new  enactments  have 
generally  upheld  the  powers,  decrees  and  proceedings  of  such 
courts  and  thereby  aided  much  to  make  such  titles  good.  In 
previous  sections  we  have  given  the  statute  complete,  in  aid  of 
such  proceedings  for  sale  of  lands  to  pay  debts.    The  statutes  are 

23— Section  134,  chapter  3,  "Ad-  of  111.,  1905,  p.  126;  see  also  sec- 
ministration  of  Estates."  Starr  &  tion  1,  chapter  131,  "Construction 
Curtis  Annotated  Statutes  of  Illi-  of  Statutes";  Kurd's  R.  S.  of  111., 
nois.  Vol.   1,  p.  349;   Kurd's  R.   S.  1905.  p.  1946. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  475 

the  greatest  guide.  Yet  the  details  that  enter  into  every  case 
must  be  worked  out  with  the  decisions  of  court,  and  com- 
pletely for  safety,  covered  by  each  decree  entered  in  such  matter. 

575.  Lands  partly  paid  for  by  decedent — sale  or  completion 
of  purchase.  "Section  67  of  chapter  3  entitled  'Administra- 
tion of  Estates,'  providing  for  the  probating  of  claims  not  due, 
must  be  considered  in  connection  with  section  111  of  the  same 
chapter  and  the  two  must  be  construed  together.  Accordingly, 
a  claim  by  a  vendor  of  land,  under  contract  for  the  unpaid  pur- 
chase money  cannot  bo  proved  up  against  the  estate  of  the  pur- 
chaser unless  the  estate  is  solvent;  and  the  payment  may  be 
made  without  prejudice  to  the  creditors,  heirs  and  devisees  of 
the  estate.  And  whether  payment  of  such  claim  against  the 
estate  for  unpaid  purchase  money  of  land  can  be  made,  with 
advantage  to  the  estate,  must  be  determined  by  the  county  court, 
and  not  by  the  administrator.  If,  under  the  last  clause  of  sec- 
tion 111,  the  probate  court  determines  that  the  estate  is  solvent, 
and  the  land  may  be  paid  for  without  prejudice  to  the  creditors, 
heirs  and  devisees,  the  claim  may  be  allowed,  and  the  adminis- 
trator may  complete  the  payment  out  of  the  assets  of  the  estate 
in  his  hands  for  the  payment  of  debts,  in  due  course  of  adminis- 
tration. When  the  two  sections  of  the  statute  are  construed, 
this  is  a  fair  and  reasonable  construction  to  be  placed  upon 
them — a  construction  which  will  do  no  injustice  to  the  vendor  of 
land  under  a  contract  where  the  payments  are  not  due ;  and  at 
the  same  time  afford  protection  to  small  estates.  Where  the 
vendor  cannot  have  his  claim  allowed  against  the  estate,  he 
holds  the  land  as  security  for  his  debt  and  is  thus  protected 
from  loss,  and  at  the  same  time  a  small  estate,  which  might  be 
consumed  in  paying  for  land  purchased,  if  the  land  claim 
should  be  allowed,  will  be  preserved  for  the  payment  of  ordi- 
nary debts  and  for  distribution  among  the  widow  and  heirs  of 
the  deceased.^^ 

24 — Miskimen  v.  Culbertson,  162     notated   Statutes   of  Illinois,   with 
111.  236.     See  Starr  &   Curtis  An-    Jones  &  Addington's   Supplements 


476  THE  LAW  OF  ESTATES. 

576.  Relation  of  administrator  to  the  real  estate — ^rights  of 

heirs.  The  judgment  of  the  county  court  allowing  the  debts 
of  a  creditor  against  an  estate,  is,  as  between  the  creditor  and 
the  administrator,  conclusive  until  reversed  or  impeached  for 
fraud. ^  As  stated  heretofore,  an  administrator  does  not  take 
title  to  real  estate,  that  vests  in  heirs-at-law  of  deceased.  The 
administrator  takes  a  power  of  sale  he  may  use  in  certain  con- 
tingency, that  is  when  it  becomes  necessary  to  sell  lands  to  pay 
debts.26  And  when  the  administrator  applies  for  leave  to  sell 
the  real  estate  for  the  purpose  of  paying  creditors  of  the  estate 
whose  claims  have  been  reduced  to  judgment,  such  judgment  is 
not  conclusive  as  against  an  heir  at  law.-'^  The  administrator 
only  represents  and  controls  personal  property.  The  heir  and 
administrator  are  not  in  privity;  the  admissions  of  an  adminis- 
trator do  not  bind  the  heir,  and  the  heir  may  contest  an  applica- 
tion for  sale  of  real  estate.^s  Jt^ji^  in  a  recent  case  the  doctrine 
of  these  early  cases  is  restated  as  follows:  "Though  the  judg- 
ment held  by  appellant  may  be  binding  on  the  personal  assets 
of  the  estate,  it  is  of  no  avail  against  the  heir  in  proceedings  to 
sell  the  land  for  the  payment  of  debts.  The  heir,  may  notwith- 
standing the  judgment,  urge  any  infirmity  in  the  original  in- 
debtedness.29 

577.  Jurisdiction  and  powers  of  probate  court  relating-  to 
sale  of  real  estate  to  pay  debts,  before  the  act  of  1887.  Prior 
to  the  amendments  of  sections  99,  100  and  101,  in  1887,^0  and 

thereto,  Vol.  1,  pp.  300,  336;  Vol,  Fitzgerald  v.  Turner,  223  111.  322. 

4,   pp.   36,   43;    Vol.   5,   p.   18,  and  See  also  Ante  565. 
cases  cited  under  section  of  stat-        25 — Wood  v.  Stone,  16  111.  177; 

utes  67  and   111,  chapter  3,  "Ad-  Hopkins  v.  McCann,  19  111.  112. 
ministration   of  Estates"    in  each         26 — Burr    v.    Bloomer,    174    111. 

volume  cited;  Hurd's  R.  S.  of  111.,  638. 

1905,  pp.  116,  123.     Under  section        27— Wood  v.  Stone,  16  111.  177. 
Ill  of  the  Administration  Act,  the        28 — Hopkins  v.  McCann,  19   111. 

probate  court  may  order  a  sale  of  112;   Gibson  v.  Gibson,  82  111.  61; 

the  land  not  fully  paid  for,  and  in  Marshall  v.  Rose,  86  111.  374. 
such  case  the  purchaser  takes  the         29 — Aden  v.   Bear,   97   111.   App. 

place   of  decedent   and   his   heirs.  347. 

30 — Ante,  553,  554,  and  notes. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  477 

Tinder  the  act  of  1857,  construed  in  Harding  v.  LeMoyne,^^  it 
was  held :  The  administrator  had  but  a  mere  power  to  sell  for 
the  payment  of  debts;  and  this  right  could  only  be  enforced 
through  the  instrumentality  of  some  court  specially  authorized 
to  act ;  and  whether  the  power  is  conferred  on  a  circuit,  probate 
or  county  court,  makes  no  difference;  as  the  power  and  juris- 
diction to  enforce  and  give  effect  to  the  right  are  the  same  in 
either  case.  As  such  right  could  only  be  enforced  through  the 
instrumentality  of  some  court  clothed  with  special  authority  for 
that  purpose  the  act  must  be  construed  so  as  to  give  full 
force  and  effect  to  the  right.  Whatever,  therefore,  was  necessary 
to  effectuate  the  sale  of  the  'Hitle  or  claim"  which  the  deceased 
had  to  the  land  sought  to  be  sold,  the  court  could  lawfully  do, 
but  it  did  act  on  the  title  or  claim  as  it  found  it.  The  right  of 
the  administrator  under  the  act  did  not  extend  to  the  removing 
of  clouds  upon  or  obstructions  standing  in  the  way  of  the  title, 
and  without  such  right  the  court  could  not  apply  a  remedy,  for 
every  remedy  which  the  law  affords  must  necessarily  be  respon- 
sive to  some  legal  right.  Under  that  act  the  court  found  the 
amount  of  the  indebtedness,  ordered  the  sale,  fixed  its  terms, 
and  prescribed  the  manner  of  conducting  it  in  so  far  as  such 
was  not  done  by  the  statute  itself;  the  court  could  either  ap- 
prove the  sale  or  set  it  aside.  And  as  a  necessary  incident  to 
the  power  to  make  the  sale,  the  court  determined  whatever 
questions  arose  in  respect  to  the  payment  of  the  purchase 
money,  or  the  sufficiency  of  the  conveyance  and,  in  short,  all 
questions  relating  to  the  sale  or  transfer  of  the  land.  In  re- 
spect to  the  land  itself,  the  court  was  required  to  find  a  sin- 
gle simple  fact,  namely,  that  the  deceased  had  title  or  a  claim 
to  it.  That  others  might  have  claims  to  the  same  land,  whether 
before  the  court  or  not,  was  a  matter  of  no  consequence,  for  the 
court  was  not  authorized  to  investigate  or  pass  upon  them.  The 
lien  of  the  creditors  upon  the  land  for  the  payment  of  their 
claims  after  the  personal  assets  had  been  exhausted,  was  coex- 

31—114  111.  65. 


478  THE  LAW  OF  ESTATES. 

tensive  with  the  title  or  claim  of  the  deceased,  whether  it  was 
good  or  bad,  and  the  heirs  and  devisees  took  subject  to  the  lien. 
It  followed  that  a  valid  sale  by  the  administrator  or  executor 
cut  off  whatever  title  or  claim  the  heirs  or  devisees  had,  but 
a  claim  founded  upon  an  independent  source  of  title  would 
not  be  affected  by  such  sale.  Under  the  old  statute, 
widows,  heirs,  devisees  and  guardians  of  minors  were  neces- 
sary parties  defendants,  not  to  settle  conflicting  titles,  but  to 
prevent  injustice.  Prior  to  the  amendatory  act  of  June 
15,  1887,  conflicting  claims  of  title  could  not  be  litigated  in  the 
county  court,  yet  it  was  necessary  to  set  them  up  to  advise  the 
purchaser  of  the  nature  and  character  of  title."- 

578.  Jurisdiction  and  power  of  probate  courts  relating  to 
sale  of  real  estate  to  pay  debts  since  the  amendatory  act  of 
1887.  Under  the  act  of  June  15th,  1887,  amending  sections 
99,  100  and  101,  of  the  act  in  relation  to  the  administration  of 
estates,^^  the  powers  of  county  courts  and  probate  courts  in  pro- 
ceedings to  sell  lands  for  the  payment  of  debts  are  greatly  en- 
larged as  compared  to  former  act  in  this  regard.  The  act  of 
1887,  provides,  that  all  persons  holding  liens  against  the 
real  estate  or  any  part  thereof,  described  in  the  petition  of 
the  executor  or  administrator  and  all  persons  having  or  claim- 
ing any  interest  in  such  real  estate  or  any  part  thereof,  in  pos- 
session or  otherwise,  shall  be  made  parties  to  such  proceeding; 
that  the  practice  in  such  cases  shall  be  the  same  as  in  cases  in 
chancery,  and  that  the  court  may  settle  and  adjust  all  equities, 
and  all  questions  of  priority,  between  all  parties  interested, 
therein,  and  may  also  investigate  and  determine  all  questions  of 
conflicting  or  controverted  titles  arising  between  any  of  the 
parties  to  such  proceeding,  and  may  remove  clouds  from  the 
title  to  any  real  estate  sought  to  be  sold,  and  invest  the  pur- 
chasers with  a  good  and  indefeasible  title  to  the  premises  sold.^* 

32— Bowers    v.    Block,    129    111.         33— See   Ante   553,   554,   555   for 
424;  Kenley  v.  Bryan,  110  111.  652;     statute  citations. 
Harding  v.  Le  Moyne,  114  111.  65.         34— Laws  of  1887,  p.   3,  for  act 

of  1887. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  479 

In  Newell  v.  Montgomery, ^^  the  constitutionality  of  the  araenda- 
torj^  act  of  1887,  conferring  these  additional  powers  upon  county 
and  probate  courts  was  upheld;  the  court  saying:  "It  will  be 
seen  that  the  constitution  in  conferring  upon  probate  courts 
jurisdiction  in  cases  of  sales  of  real  estate  of  deceased  persons 
for  the  payment  of  their  debts,  in  no  way  attempted  to  define 
or  limit  the  procedure  in  cases  of  that  character.  That  is  left 
entirely  to  legislative  discretion.  It  was  therefore  competent 
for  the  General  Assembly  to  prescribe  any  procedure  which  in 
its  judgment  was  appropriate.  There  was  then  no  constitu- 
tional objection  to  assimilating  it  to  that  which  obtains  in  courts 
of  chancery.  Such  procedure  is  certainly  as  appropriate  for 
the  purpose  as  any  which  the  laws  of  the  State  provide  or  rec- 
ognize. Nor  is  there  any  constitutional  objection  to  a  provision 
requiring  all  parties  interested  in  the  land  to  be  brought  before 
the  court  and  have  their  rights  litigated  and  ascertained  prior 
to  a  sale.  In  case  of  most  judicial  sales  such  provision  has 
always  existed.  The  theory  is  that  the  estate  in  the  laud  which 
it  is  proposed  to  sell  can  be  sold  more  advantageously  and  with 
the  expectation  of  realizing  a  better  price,  after  the  interests 
of  all  parties  have  been  determined,  so  that  the  purchaser  may 
know  precisely  the  nature  and  extent  of  the  estate  for  which 
he  is  bidding.  A  procedure  which  requires  an  adjudication 
of  the  rights  of  all  parties  in  interest  before  a  sale  is  certainly 
not  inappropriate  to  eases  of  sales  of  the  lands  of  deceased 
persons  for  the  payment  of  debts,  its  advantages  being  just 
as  manifest  there  as  in  cases  of  other  judicial  sales.  That  it 
has  not  prevailed  in  pTObate  courts  heretofore  is  not  because 
it  was  expressly  or  impliedly  prohibited  by  the  constitution,  but 
because  it  was  not  provided  for  by  the  statute,  "^s  Under  sec- 
tion 101,3''^  as  amended  in  1887,  the  probate  court  has  power, 

35—129  111.   58.  utes    of    Illinois,    Vol.    1,    pp.    153, 

36 — See    section    18,    article    6,     154,  and  cases  cited  under  sections 
Constitution  of  Illinois,  1870;   see     noted. 

also    section    20    of   same    article.         37 — Ante,    555.   for   statute,   sec- 
Starr    &    Curtis    Annotated    Stat-    tion  101,  chapt.  3,  "Administration 

of  Estates." 


480  THE  LAW  OF  ESTATES. 

when  an  application  is  made  by  an  administrator  to  sell  real 
estate  of  a  deceased  for  payment  of  debts  to  ascertain  the 
amount  due  on  mortgage  liens;  to  direct  the  sale  of  such  lands 
discharged  of  such  liens;  and  if  such  liens  are  not  due  direct 
the  sale  subject  thereto;  and  the  court  by  its  decree  may  pro- 
vide for  the  payment  and  satisfaction  of  such  mortgage  liens 
that  are  due  and  payable  out  of  the  proceeds  arising  from  such 
sale.  The  court  may  settle  and  adjust  all  equities  between  the 
parties  as  well  as  all  questions  of  priority  in  the  lands  or  in  the 
proceeds  from  the  sale  thereof;  and  with  the  assent  in  writing 
of  the  widow,  direct  that  the  lands  be  sold,  free  and  discharged 
from  homestead  estate  and  right  of  dower;  and,  after  such  sale, 
the  court  may  ascertain  the  value  of  such  homestead  estate  and 
right  of  dower,  and  order  the  same  paid  out  of  the  proceeds.^^ 
In  the  absence  of  a  bill  of  exceptions  or  certificate  of  evidence, 
it  will  be  presumed  the  findings  of  fact  recited  in  an  order  for 
sale  of  real  estate  to  pay  debts  are  correct.  Also,  that  the 
court  by  its  order  did  not  impose  more  upon  a  particular  tract 
than  its  proper  portion.  And  it  is  also  held,  if  real  estate  and 
bank  stock  are  both  specifically  given  by  a  will  both  should 
abate  ratably  for  the  payment  of  debts,  unless  the  debts  are 
expressly  or  impliedly  charged  upon  the  real  estate.^^ 

579.  To  give  jurisdiction  to  sell  real  estate  probate  court 
must  find  a  deficiency  of  personal  assets.  It  is  a  well  estab- 
lished fundamental  rule,  the  personal  estate  of  a  deceased  is 
primarily  liable  for  the  payment  of  his  debts.  And  it  is  equally 
well  established,  no  resort  can  be  had  to  the  real  estate  of  de- 
ceased until  the  personal  estate  is  exhausted  or  shown  to  be  in- 
sufficient to  pay  the  just  debts  and  claims  against  such  estate.**^ 
Where  it  appears  that  the  administrator  omitted  to  make  a  just 
and  true  account,  required  by  section  98  of  the  "administration 

38— Virgin  v.  Virgin,  91  111.  App.  134;    Sutherland   v.    Harrison,    86 

204;  Cutler  v.  Cutler,  188  111.  285;  111.   363;    Diversey  v.   Johnson,  93 

Hayack  v.  Will,  169  111.  145.  111.  547;   Harding  v.  LeMoyne,  114 

39— Danel  v.  Arnold,  201  111.570.  111.   65;    Danel  v.  Arnold.   201  111. 

40— McLean   v.   McBean,   74   111.  579. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  481 

act"  such  omission  is  cured  by  the  finding  of  the  probate  court 
in  the  usual  form  that  the  amount  of  assets,  and  the  amount  of 
claims  allowed  against  the  estate,  show  a  deficiency  of  personal 
assets.*^  ''Where  it  is  ascertained  that  the  personal  estate  of 
a  deceased  person  is  insufficient  to  pay  the  just  claims  against 
his  estate,  and  there  are  lands  to  which  he  had  title,  it  is  the 
duty  of  the  administrator  under  section  99  of  chapter  3  enti- 
tled "Administration  of  Estates"  to  proceed  to  sell  the  same 
for  the  payment  of  debts.  And  it  is  held,  intestate's  lands 
should  not  be  sold  merely  to  pay  expenses  of  administration.^ 2 
It  is  erroneous  to  order  sale  of  land  when  no  claims  against 
estate  have  been  allowed  by  the  court  to  which  application  is 
made,  although  such  claims  have  been  allowed  by  a  probate 
court  of  another  State.  A  judgment  against  an  administrator 
in  one  State  is  no  evidence  of  indebtedness  against  another  ad- 
ministrator of  the  same  decedent  in  another  State,  for  the  pur- 
Piose  of  affecting  assets  received  by  the  latter  under  his  ad- 
ministration. ^^  The  administrators  are  not  regarded  as  in 
privity  vath  each  other.^*  But  where  an  executor's  sale  was 
made  under  a  decree  of  the  circuit  court  of  Cook  county  to  pay 
debts  of  his  testator,  and  no  question  arises  on  the  record  as  to 
the  regularity,  in  form  of  the  sale,  it  was  held:  The  sale  can- 
not be  impeached  or  set  aside  because  sold  to  pay  debts  not  pre- 
sented and  formally  probated  in  the  county  court.  It  was 
sufficient  the  executor  had  been  notified  of  the  existence  of  the 
claims,  and  demand  made  to  pay  them ;  and,  whether  they  were 
secured  or  not,  being  bana  fide  indebtedness  due  from  the  es- 
tate, the  obligation  rested  upon  the  executor  to  raise  funds,  so 
far  as  this  could  be  done  from  the  estate  to  meet  them.^^  A 
citizen   of  another  State,   in   which    administration    has    been 

41 — ^Madden    v.    Cooper,    47  111.         43 — Hobson  v.  Payne,  45  III.  158. 

359.  44— Rosenthal  v.  Renich,  44  111. 

42 — Ante     553,    for    statute  in     207;   Story's  Conflict  of  Laws,  sec. 

question;   Virgin  v.  Virgin,  91  111.     522. 

App.  204;  Fitzgerald  v.  Glancy,  49         45 — Williams  v.   Rogers,   81   111. 

111.  465;   Walker  v.  Diehl,  79  111.     571. 
473. 

31 


482  THE  LAW  OF  ESTATES. 

granted  upon  an  estate,  may  come  to  this  State  and  cause  ad- 
ministration to  be  taken  out  liere,  have  a  claim  allowed,  and 
real  estate  sold  for  its  payment;  and,  in  such  case,  it  is  not 
necessary  to  show  that  the  personal  estate  in  the  other  State 
has  been  exliausted.'^^  But  a  judgment  rendered  in  a  foreign 
State  against  an  executor  appointed  and  acting  in  Illinois  alone, 
is  of  no  force  in  Illinois;  and  courts  of  this  State  cannot  allow 
such  judgment  as  a  claim  against  the  estate  upon  the  filing  of 
a  transcript;  as  such  a  judgment  is  not  even  prima  facie  evi- 
dence of  indebtedness.^'''  It  is  to  be  inferred  from  the  holding 
in  Elting  v.  First  National  Bank,"^^  that  proof  should  be  made 
of  such  claim  in  the  way  pointed  out  by  the  statute  law  of  this 
State  when  filing  the  transcript  of  a  judgment  of  any  other 
State. 

580.  Jurisdiction  of  persons  and  subject  matter  of  suit  re- 
lating to  sales  of  real  estate  to  pay  debts.  Jurisdiction  of  the 
person  is  acquired  by  service  or  voluntary  appearance."*^  Juris- 
diction of  the  subject  matter  is  acquired,  by  the  filing  of  a 
petition  to  sell  the  real  estate,  by  the  executor  or  administrator, 
containing  the  necessary  allegations,  which,  under  the  statute 
law,  requires  the  court  to  act,  i.  e.,  "that  there  are  debts  against 
the  estate  and  that  there  is  no  personal  property,  or  there  being 
such,  that  it  is  insufficient  for  the  payment  of  debts.^*^  And 
where  the  record  in  such  proceeding  to  sell  to  pay  debts,  shows 
a  finding  by  the  court  of  the  necessary  facts  to  give  jurisdic- 
tion, the  burden  of  proof  rests  upon  the  party  assailing  the 
title  thus  acquired  to  show  the  court  did  not  acquire  jurisdic- 

46— Rosenthal  v.  Renick,  44  111.  Oettinger  v.   Specht,   162  111.  182; 

207.  Cassell    v.    Joseph,    184    111.    378; 

47 — Elting     V.     First     National  Krieger  v.  Krieger,  221  III.  479. 
Bank,  173  111.  368,  p.  389;   Heden-         50— Bree   v.   Bree,    51    111.    367; 

berg  V.  Hedenberg,  46  Conn.  30.  Moffitt  v.   Moffitt,   69  111.  641;   Di- 

48—173   111.  368.  versey    v.    Johnson,    93    111.    547; 

49— Botsford  v.  O'Connor,  57  111.  Harding  v.  LeMoyne,  114   111.  65; 

72;  Clark  v.  Thompson,  47  111.  25;  Virgin  v.  Virgin,  91  111.  App.  204. 
Reedy    v.    Canfield,    159    111.    254; 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  483 

tion,  by  clear  and  satisfactory  evidence.^^  Justice  Magruder 
speaking  for  the  court  in  Cassel  v.  Joseph,  said:  In  this  State 
the  county  court,  although  a  court  of  limited  jurisdiction,  is 
not,  strictly  speaking,  a  court  of  inferior  jurisdiction.  It  is  a 
court  of  record,  and  has  a  general  jurisdiction  of  unlimited  ex- 
tent over  certain  classes  of  subjects.  When  acting  within  that 
sphere,  its  jurisdiction  is  as  general  as  that  of  the  circuit  court. 
When  the  county  court  acts  within  the  limits  of  its  jurisdiction, 
liberal  intendments  will  be  indulged  in  favor  of  its  judgments 
and  decrees,  the  same  as  they  are  indulged  in  favor  of  the  judg- 
ments and  decrees  of  the  circuit  court.^^  The  principle,  that 
presumptions  will  be  entertained  in  favor  of  the  jurisdiction 
of  courts  of  general  jurisdiction,  has  been  applied  to  cases  where 
the  decree  is  silent  as  to  the  service  of  process  upon  the  de- 
fendants.'^ 2  Where  the  record  of  a  judgment  or  decree  is  relied 
on  collaterally,  jurisdiction  must  be  presumed  in  favor  of  a 
court  of  general  jurisdiction,  although  it  is  not  alleged  or  fails 
to  appear  in  the  record.'^*  Where  a  decree  is  called  in  question 
collaterally,  it  is  regarded  as  a  general  rule,  in  all  courts  of 
general  jurisdiction  that  nothing  is  presumed  to  be  out  of 
their  jurisdiction  but  what  specially  appears  to  be  so;  but,  on 
the  contrary,  nothing  shall  be  intended  to  be  within  the  jurisdic- 
tion of  an  inferior  court  but  that  which  is  expressly  alleged.  "^^ 
Where  the  decree  is  silent  as  to  the  jurisdiction  of  the  court 
over  the  defendants,  and  there  is  no  evidence  showing  that 
jurisdiction  was  not  acquired,  it  will  be  presumed  that  the 
court  had  jurisdiction.^^  The  rule,  that  nothing  shall  be  intended 
to  be  out  of  the  jurisdiction  of  a  superior  court  except  that  which 


51 — Kilgour   V.   Gockley,   83    111.  54— Wenner  v.  Thornton,  98  III. 

109;  Cassel  v.  Joseph,  184  111.  383.  156. 

52— Barnett  v.  Wolf,  70  111.  76;  55— Benefield  v.   Albert,  132  111. 

Propst   V.    Meadows,    13    111.    157;  665-671;   Bradley  v.  Drone,  187  111. 

Von    Kettler   v.    Johnson,    57    111.  175;  Swearington  v.  Gulick,  67  111. 

109;  Matthews  v.  Hoff,  113  111.  90.  208. 

53— Swearington    v.    Gulick,    67  56— Reedy    v.    Canfield,   159   111. 

111.  208-212.  254. 


484  THE  LAW  OF  ESTATES. 

expressly  appears  to  be  so,  is  applicable  where  there  is  a  col- 
lateral attack  upon  the  record  of  the  court,  which  is  silent  as 
to  service  upon  the  parties.  The  presumption  of  jurisdiction 
in  such  case  embraces  not  only  jurisdiction  of  the  subject  mat- 
ter, but  also  of  the  parties.^^  Should  the  record  disclose  noth- 
ing, jurisdiction  over  the  person  as  well  as  the  subject  matter 
will  always  be  presumed  when  the  validity  of  the  judgment 
is  questioned  collaterally.^^  It  will  be  presumed  that  the 
coimty  court  had  jurisdiction  to  enter  a  decree  for  a  sale  by  an 
administrator  to  pay  debts,  though  the  record  does  not  affirma- 
tively show  that  defendants  in  the  proceedings  were  served 
with  process;  and  where  no  objection  was  made  to  the  validity 
of  the  decree  for  thirty  years,  and  no  evidence  is  offered  in  the 
collateral  proceedings  attacking  it,  to  show  want  of  jurisdiction 
it  will  be  presumed  that  court  had  jurisdiction.^^  In  a  parti- 
tion suit,  in  which  a  decree  was  entered  before  the  great  Clii- 
cago  fire  of  1871,  which  destroyed  the  records  of  the  court,  it  is 
held :  Service  on  defendants  will  be  presumed  after  the  expira- 
tion of  twenty  years  from  a  decree  of  a  tribunal  acting  within  its 
jurisdiction.^"^  Mere  irregularities  in  the  proceedings  of  the 
county  court  with  reference  to  an  administrator's  sale  do  not 
afford  a  basis  for  collateral  attack.*^^  Under  the  Colorado  deci- 
sions it  is  held,  that  in  a  proceeding  to  sell  real  estate,  the  ad- 
ministrator must  comply  strictly  with  the  statute,  in  order  to 
bind  and  conclude  interested  parties.^^ 

581.  Hearing  and  decree — overplus.  Section  107,  chapter 
3  entitled  "Administration  of  Estates,"  gives  the  probate  court 
power  in  a  proceeding  to  sell  lands  of  a  deceased  person  to  pay 
debts  by  executors,  and  administrators  to  enter  an  order  caus- 

57— Nickrans   v.   Wilk,  161    111.  60— Nickrans    v.    Wilk,    161    111. 

76-83.  76. 

58— Cassell    v.    Joseph,  184    111.  01- Bradley    v.    Drone,    187    111. 

383.  175. 

59— Nickrans   v.    Wilk,  161    111.  62— Fillmore     v.     Keithman,     6 

76;  Cassell  v.  Joseph,  184  111.  383.  Colo.  130. 


SALE  OF  REAL  ESTATE  TO  PAT  DEBTS.  485 

ing  the  lands  of  such  persons  to  be  surveyed  and  platted.®^  In 
a  proper  proceeding  probate  courts  and  county  courts  having 
probate  jurisdiction,  may  by  their  decrees  direct  sale  of  every 
kind  of  real  estate  which  deceased  owned  when  he  died;  and 
also  determine  by  such  decrees  the  interest  of  all  parties  to  the 
proceeding,  where  such  courts  have  acquired  jurisdiction  of  the 
person  and  subject  matter  of  the  suit.®^  And  the  probate  court, 
when  material  to  the  proceedings  to  sell  real  estate  to  pay  debts, 
may  by  its  decree  find  the  interest  of  a  trustee  in  a  deed  of 
trust ;  particularly,  where  the  property  described  in  such  deed  of 
trust  relates  to,  or  inciunbers  the  property  sought  to  be  sold  by 
such  proceedings.  And  such  court  may  by  its  decree  ascertain 
the  amount  due  if  any,  under  such  deed  of  trust,  and  such 
other  matters  and  facts  as  may  appear  to  the  court  essential  or 
material  in  such  proceedings  to  sell  the  decedent's  real  estate.^^ 
A  decree  in  such  proceedings  is  for  sale  of  decedent's  interest 
in  the  real  estate,  and  the  court  acts  on  decedent's  title  as  it 
finds  it.^® 

582.  The  homestead  and  dower  rights.  The  adjustment  of 
the  homestead  and  dower  rights  must  of  necessity,  and  do  fre- 
quently enter  into  proceedings  to  sell  real  estate  to  pay  debts; 
the  adjustment  of  these  rights  may  arise  in  various  ways.^'^ 
Among  othei'  things,  the  probate  court,  under  the  statute  may, 
with  the  assent  of  the  persons  entitled  to  an  estate  in  dower,  or 
by  the  curtsy,  or  for  life  or  for  years,  or  of  homestead  to  the 
whole  or  in  part  of  the  premises,  who  is  a  party  to  the  suit  ad- 

63 — See    statute,    cited    in    text,  129  111.  58;  Virgin  v.  Virgin,  91  111. 

Ante  563.    Section  11,  chapter  109,  App.  204;  Cutler  v.  Cutler,  188  111. 

entitled   "Plats."     Starr   &   Curtis  285;   Hayack  v.  Will,  169  111.  145. 

Annotated  Statutes  of  Illinois,  Vol.  65 — Kittridge    v.    Nicholes,    162 

3,   p.    2973;    Kurd's   R.    S.    of    111.,  111.  410. 

1905,   p.    1529.  66— Harding  v.  LeMoyne,  114  111. 

64— See    sections    99,    100,    101,  65;   Wenninger  v.  Fietsam,  29  111. 

chapter  3,  "Administration  of  Es-  App.  648. 

tates,"   quoted    in   full.   Ante    553,  67 — Section  101,  chapter  3,  "Ad- 

554,    555;    Kenley    v.    Bryan,    110  ministration  of  Estates,"  for  etat- 

111.    652;    Newell   v.   Montgomery,  ute  see  Ante  555. 


486  THE  LAW  OF  ESTATES. 

just  all  such  rights;  but  such  assent  shall  be  in  writing  and 
signed  by  such  persons,  and  filed  in  the  court  wherein  the  said 
proceedings  are  pending.  When  any  such  estate  is  sold  the 
value  thereof  shall  be  ascertained  and  paid  over  in  gross,  or 
the  proper  proportion  of  the  funds  invested  and  the  income  paid 
over  to  the  party  entitled  thereto,  during  the  continuance  of  the 
estate.^^  "That  every  householder,  having  a  family,  shall  be 
entitled  to  an  estate  of  homestead,  to  the  extent  in  value  of 
$1,000,  in  the  farm  or  lot  of  land  and  buildings  thereon,  etc." 
"Such  exemption  shall  continue  after  the  death  of  such  house- 
holder, for  the  benefit  of  the  husband  or  wife  surviving,  so 
long  as  he  or  she  continues  to  occupy  such  homestead,  and  of 
the  children  until  the  youngest  child,  becomes  twenty-one  years 
of  age,  etc."  "No  release,  waiver  or  conveyance  of  the  estate 
so  exempted  shall  be  valid,  unless  the  same  is  in  writing,  sub- 
scribed by  said  householder  and  his  or  her  wife  or  husband,  if 
he  or  she  have  one,  and  acknowledged  in  the  same  manner  as 
conveyances  of  real  estate  are  required  to  be  acknowledged,  or 
possession  is  abandoned  or  given  pursuant  to  the  conveyance; 
or,  if  the  exemption  is  continued  to  a  child  or  children,  without 
the  order  of  a  court  of  competent  jurisdiction  directing  a  re- 
lease. "^^  "In  construing  these  several  sections  and  different 
statutes  they  are  to  be  construed  in  pari  materia.  The  husband 
entitled  to  a  homestead  dying  and  leaving  a  widow  and  chil- 
dren, the  homestead  becomes  vested  in  the  widow,  who  may 
sell,  encumber  or  abandon  the  same.  In  case  of  a  sale  or  in- 
cumbrance by  such  widow,  with  proper  acknowledgment,  the 
conveyance  or  lien  is  complete  against  the  children.  They  are 
not  vested  with  a  right  equal  to  that  of  the  widow,  but  their 
right  is  subordinate  to  hers.  She  dying,  they  become  vested  with 
the  estate  of  homestead  if  under  twenty-one  years  of  age;  and 

68— Ante  554,  555.  thereto.  Vol.  2,  pp.  1865,  1871,  1874, 

69 — See    section    1,    chapter    52,  and  cases  cited  under  sections  of 

"Exemptions."      Sections    2,    4    of  statute;    Vol.  4,  pp.  614,  615,  616, 

same  chapter.     Starr  &  Curtis  An-  and   cases   cited;    Vol.   5,   pp.   257, 

notated  Statutes   of  Illinois,  with  258,  and  cases  cited;  Kurd's  R.  S. 

Jones  &  Addington's  Supplements  of  111.,  1905,  pp.  1043,  1044. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  487 

the  last  clause  of  section  4  of  chapter  52  applies  to  them;  or 
if  there  be  no  vridow,  but  children  of  required  age,  that  clause 
also  applies.  By  the  provisions  of  the  Probate  Court  act.'^ 
Under  these  various  provisions  of  the  statutes  of  this  State, 
the  probate  court  of  any  county  where  such  court  is  established 
by  law,  has  power  to  enter  a  decree  to  sell  land  to  pay  debts, 
and,  with  the  assent  of  persons  entitled  to  an  estate  in  dower, 
or  for  life,  or  for  years,  or  of  homestead  in  the  whole  or  part 
of  the  premises,  who  is  a  party  to  the  suit,  may  include  such 
particular  estate  to  be  sold  with  the  rest,  where  the  assent  is 
in  writing,  signed,  and  etc.  The  widow  surviving,  with  chil- 
dren also  surviving,  is  vested  with  the  estate  of  homestead,  and 
her  assent  would  be  conclusive  on  the  children  and  would  bar 
their  right  to  a  homestead  therein.  An  exception  to  this  rule 
exists  in  a  case  where  the  householder  leaves  minor  children 
by  a  former  marriage,  and  the  surviving  husband  or  wife  is 
only  step-parent  to  such  children.  In  such  case,  if  the  step- 
parent does  not  stand  in  loco  parentis  he  owes  no  duty  of  sup- 
port to  such  children,  and  cannot  convey,  release,  abandon  or 
dispose  of  the  homestead  so  as  to  extinguish  their  interest. '^'^ 
Where  the  sale  of  a  homestead  is  held  in  such  case,  the  pro- 
ceeds thereof  should  be  distributed  to  the  surviving  householder 
and  the  step-children  in  proportion  to  their  respective  inter- 
ests.'- A  widow  has  no  right  to  consent  to  a  sale  of  her  home- 
stead that  would  defeat  the  right  of  the  heirs  thereto;  thus  a 
widow  in  delicate  health,  with  an  infant  child  dependent  upon 
her  for  support,  whose  homestead  is  a  small  farm  which  she 
could  not  till  or  occupy  or  rent,  would  be  practically  deprived 
of  the  benefit  of  such  homestead.    In  such  case  it  is  held,  that 

70 — Hayack  v.  Will,  169  111.  145,  county  courts  under  the  "Adminis- 

pp.   148,   149.     See   Probate   Court  tration  Act." 

Act,  Ante,  chapt.  1,  sec.  2.   Probate  71 — See   note    (69)    citing    stat- 

courts  in  counties  having  a  popu-  utes.     Hayack  v.  Will,  169  111.  145, 

lation    of    more    than    70,000    are  construing    and    giving    effect    to 

vested  with  the  same  powers  and  same. 

jurisdiction  with  reference  to  the  72 — Capek    v.    Kropik,    129    111. 

sale  of  land  to  pay  debts,  as  are  509. 


488  THE  LAW  OF  ESTATES. 

the  widow  may  consent  to  a  sale  of  the  homestead,  and  thereby 
bar  the  right  of  her  children  to  a  homestead  in  the  land.'^^  Chil- 
dren residing  with  their  father,  who  has  a  homestead  estate  in 
the  residence  property  owned  by  his  divorced  wife,  are  not 
necessary  parties  to  bill  by  her  to  have  such  homestead  set  off.'^* 
The  law  is  well  settled  to  this  effect;  that  where  the  homestead 
premises  do  not  exceed  $1,000  in  value,  they  cannot  be  sold 
to  pay  debts  by  the  administrator  of  a  deceased  householder 
until  after  the  termination  of  the  exemption  in  favor  of  the 
widow  and  children.'^^  And  the  holders  of  unsatisfied  claims 
may  wait  until  the  homestead  estate  is  extinguished  before  ap- 
plying for  a  sale  of  the  property,  even  though  more  than  twenty 
years  have  elapsed  since  such  claims  were  alio  wed  J  ^  But  when 
a  married  woman  joins  with  her  husband  in  the  execution  of  a 
mortgage  upon  his  lands,  she  waives  her  homestead  estate  and 
right  of  dower  in  the  lands.  ^'^  And  under  section  4  of  the  Dower 
Act,  where  the  wife  fails  to  join  in  a  purchase  money  mortgage 
she  is  not  entitled  to  dower  as  against  the  mortgagee  or  those 
claiming  under  him,  but  is  entitled  to  dower  as  against  all  other 
persons.'^^  A  widow  is  entitled  to  be  endowered  of  one-third  of 
the  proceeds  of  a  sale  of  real  estate  to  pay  debts  remaining  after 
payment  of  mortgage  liens  and  after  deducting  $1,000  for  the 
homestead  interest,  if  such  exists.  A  husband's  homestead  and 
dower  rights  in  the  lands  of  his  wife  are  determined  by  the  law 
in  force  at  the  death  of  his  wife;  and  under  the  law  in  force 
in  this  State  since  1874,  a  wife  has  no  power  to  devise  her  home- 
stead to  another,  and  thus  deprive  her  husband  of  that  estate J» 
These  rights  created  by  statute  law,  may  be  enlarged,  dimin- 
ished or  abolished  as  the  legislature  may  direct,  at  any  time 

73— Capek    v.    Kropik,    129  111.  76— People  v.  Langham,  189  111. 

509.  326. 

74— Cutler  v.  Cutler,  188  111.  285.  77— Selb   v.    Montague,    102    111. 

75— Hartman  v.  Schultz,  101  111.  446. 

437;    Oettinger  v.   Specht,   162  111.  78— Frederick  v.  Emig,   186  111. 

179;    Mueller   v.    Conrad,    178  111.  319. 

276;    Hannah   v.   Palmer,   194  111.  79— Henson   v.    Moore,    104    111. 

41.  403. 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  489 

before  they  become  vested  estates  by  the  death  of  the  person 
from  whom  they  are  derived.  Any  change,  however,  in  the  law 
after  that  will  have  no  bearing  on  the  parties'  rights.^*^  And 
it  is  held,  the  heirs,  by  paying  off  the  mortgage  debt  upon  lands, 
may  require  the  husband  or  wife  who  are  endowed  to  con- 
tribute his  or  her  proportionate  part  of  the  debt.^^ 

583.  Service  summons  and  notice  by  publication.  The  serv- 
ice of  summons  must  be  had  by  reading.*^  j^  guardian  has  no 
power  to  admit  service  for  ward.^^  And  so  as  to  persons  under 
legal  disability.^*  Period  of  notice  by  publication  is  fixed  by 
law  approved  June  11,  1897,  in  force  July  1,  1897.^^  A  sum- 
mons issued  and  made  returnable  to  a  term,  when  less  than 
ten  days  intervene,  is  void,  and  confers  no  jurisdiction.^^ 

584.  Notice  time  and  terms  of  sale.  Section  109,  chapter  3, 
entitled  "Administration  of  Estates"  directs  "the  time  and 
terms  of  sale  that  are  a  part  of  the  decree  or  order  of  the  court 
for  sale.     And  in  such  case,  the  power  of  the  executor  or  ad- 

80 — Henson    v.    Moore,    104    111.         84 — Section      25,      chapter      86, 

403.  "Lunatics,  etc."    (1)  Starr  &  Curtis 

81— Montague  v.  Selb,  106  111.  49;  Annotated  Statutes  of  Illinois,  Vol. 

McNeer  v.   McNeer,    142   111.   388;  1,  p.  2090,  and  cases  cited;  Hurd's 

Kusch  V.  Kusch,  143  111.  353.     See  R.    S.   of   111.,   1905,   p.   1133.      (2) 

also   sections   1   to   6,  chapter   41,  Starr  &  Curtis  Annotated  Statutes 

"Dower."      Starr   &   Curtis    Anno-  of  Illinois,  Vol.  1,  p.  2668;  Hurd's 

tated    Statutes    of    Illinois,    with  R.  S.  of  111.,  1905,  p.  1348;  Wing  v. 

Jones  &   Addington's  supplements  Dodge,  80  111.  564. 
thereto.    Vol.    2,    pp.    1456,    1462,         85— Section  9,  chapter  100,  "Act 

1463;  Vol.  4,  p.  446;  Vol.  5,  p.  180,  to  regulate  service  by  publication 

and  cases  cited  under  sections  of  in  courts  of  record  and  to  repeal 

statute  in  each  volume;  Hurd's  R.  acts  in  conflict  therewith."     Starr 

S.  of  111.,  1905,  pp.  768,  769.  &  Curtis  Annotated  Statutes  of  II- 

82 — Section  104,  chapter  3,  "Ad-  linois,   with   Jones   &   Addington's 

ministration    of    Estates."      Ante  Supplements    thereto.    Vol.    4,    pp. 

558;   Oettinger  v.  Specht,  162   111.  904,  905;  Hurd's  R.  S.  of  111.,  1905, 

182.  p.  1413.     See  also  Loeb  v.   Stern, 

83— Clark  v.  Thompson,  47  111.  198  111.  383. 
25;  Chambers  v.  Jones,  72  111.  276;         86— Matthews   v.    Hoff,    113    111. 

section  30,  chapter  64,  "Guardian  90;   Sloan  v.  Graham,  85  111.  26. 
and  Ward." 


490  THE  LAW  OF  ESTATES. 

ministrator  is  derived  from  the  decree  and  he  must  sell  ac- 
cording to  its  terms,^^  This  section  of  the  statute  indicates  the 
administrator  or  executor  must  be  present  at  the  sale,  and  the 
authorities  so  hold.^s  Objections  to  sale  that  power  was  dele- 
gated must  be  urged  with  reasonable  diligence.^^  But  what  is 
reasonable  diligence  in  one  ease  may  not  be  considered  so  in 
another;  the  circumstances,  facts  and  conditions  of  each  case 
seem  to  move  the  court  to  action,  when  it  concludes  a  remedy 
should  be  applied  to  right  a  grievous  wrong.^*^  When  the  terms 
of  the  sale  by  the  decree  of  the  court,  require  the  same  to  be 
for  cash,  and  where  such  a  decree  is  for  debts  allowed  the  execu- 
tor or  administrator  has  a  right  to  demand  that  a  bidder  shall 
make  a  cash  deposit  as  a  guarantee  that  he  will  consummate  the 
purchase  if  the  court  approves  the  sale ;  and  when  such  demand 
is  made  by  the  administrator  or  executor  it  will  constitute  no 
sufficient  grounds  for  setting  aside  a  sale.''^  The  bidder  at  a 
judicial  sale  bids  for  title  conferred  by  the  decree  of  sale,  and 
if  he  refuses  to  comply  with  his  bid,  he  cannot  after  sale  of 
property  to  another  for  less  sum  than  he  bid,  be  compelled  to 
pay  difference  between  amount  bid  by  him  and  the  amount  for 
which  the  property  was  finally  sold,  unless  he  was  cited  before 
the  court  which  rendered  decree  for  sale,  and  in  such  court  be 
given  an  opportunity  to  show  cause  for  refusing  to  complete 
purchase.92  j>^  bidder  at  a  judicial  sale,  if  he  discovers  before 
complying  with  his  bid  that  the  decree  or  judgment  is  inade- 
quate to  transfer  such  title  as  the  deoree  pretends  to  confer,  he 
may  decline  to  complete  his  purchase.^^  The  rule  of  caveat 
emptor  applies  to  all  judicial  sales,  and  has  been  in  the  following 
cases  applied  to  administrators'  sales.^*     If  fraud  or  mistake 

87 — See    statute    cited    in    text,  Bank,  173  111.  381,  and  cases  cited. 

Ante  563;  Reynolds  v.  Williams,  15  91— Allen  v.  Shepard,  87  111.  314; 

111.  394.  Mueller  v.  Conrad,  178  111.  281. 

88— Sebastian  v.  Johnson,  72  111.  92— Tilton    v.    Pearson,    67    111. 

282;  Kellogg  v.  Wilson,  89  111.  357.  App.  373. 

89— Kellogg   V.    Wilson,    89    111.  93— Tilton    v.    Pearson,    67    111. 

357.  App.  373. 

90— Elting     V.     First     National  94— Shup  v.  Calvert,  174  111.  502; 


SALE  OF  REAL  ESTATE  TO  PAY  DEBTS.  491 

enter  into  transaction,  collusion  or  other  serious  irregularities 
the  sale  will  be  held  invalid.^^  And  it  is  held:  The  adminis- 
trator may  withdraw  realty  from  sale  after  decree  and  before 
completion  of  sale,  where  the  heirs  come  forward  and  advance 
money  sufficient  to  pay  debts  of  estate;  or  if  new  assets  of  a 
personal  character  are  discovered  that  may  be  used  to  pay 
debts,  the  administrator  may  withdraw  realty  from  sale."^  It 
is  a  well  settled  doctrine  that  an  administrator  cannot  either 
directly  or  indirectly  purchase  at  his  own  sale,  and,  if  he  does, 
creditors  injured  may  in  proper  proceedings  set  the  sale  aside.^^ 

585.    The  court  must  confirm  the  sale — the  report  of  sale. 

After  the  sale,  under  section  109  of  the  statute  cited,"^  the  ex- 
ecutor or  administrator  must  make  report  of  sale,  and  by  such 
instrument  fully  inform  the  court  what  was  in  fact  done  at 
such  sale.  The  approval  or  disapproval  of  such  report  will 
then  follow.  Until  the  sale  is  confirmed  it  is  not  a  sale  in  the 
legal  sense.^^  ' '  Until  the  sale  is  confirmed, ' '  says  Borer  on  Judi- 
cial Sales,^  "it  is  only  a  sale  in  the  popular  sense,  and  not  a 
legal  or  judicial  sale.  The  chancellor  has  a  broad  discretion 
in  the  approval  or  disapproval  of  such  sale.  The  accepted  bid- 
der acquires,  by  the  mere  acceptance  of  his  bid,  no  independent 
right  ....  to  have  the  purchase  completed,  but  is  merely 
a  preferred  proposer  until  confirmation  of  the  sale  by  the  court, 

as   agreed  to  by  its  ministerial   agent Confirmation 

is  final  consent,  and  the  court,  being  in  fact  the  vendor,  may 
consent  or  not,  in  its  discretion."  A  county  court  may,  before 
confirmation,  disapprove  a  conservator's  sale  made  subject  to  its 
approval.  Where,  though  the  sale  is  regularly  and  fairly  made, 
if  it  clearly  appears  to  the  court  that  a  re-sale  will  be  advan- 
tageous to  the  estate  of  the  party  under  disability,  whose  inter- 
Sexton  V.  Sikking,  90  111.  App.  97 — Elting  v.  First  National 
669.  Bank,  173  111.  381. 

95— Lockwood    v.    Mills,    39    111.         98— Anfe  563. 
602;  Tilley  v.  Bridges,  105  111.  336.         99— Hart  v.  Burch,  130  III.  426. 

96 — Bozza  v.  Rowe,  30  111.   198.         1 — Rorer  on  Judicial  Sales,  sec. 

124  et  seq.  and  cases  cited  in  notes. 


492  THE  LAW  OP  ESTATES. 

ests  the  court  is  bound  to  watch  over  and  protect,  and  the  court 
may  in  its  discretion  in  such  case  order  a  re-sale.2  The  cases 
which  seem  to  make  a  distinction,  between  a  sale  by  a  master  in 
chancery  and  one  by  an  administrator  or  conservator,  in  fact, 
all  of  the  cases,  where  judicial  sales  have  been  upheld,  arose 
upon  a  state  of  facts  distinguishable  from  those  of  Jennings  v. 
Dunphy,^  where  the  sale  was  disapproved.  There  the  purchase 
money  had  been  paid,  a  deed  delivered  to  the  purchaser,  and,  in 
some  instances,  the  property  had  been  conveyed  to  third  par- 
ties. In  all,  a  considerable  length  of  time,  ranging  from  six 
months  to  nineteen  years,  was  allowed  to  elapse  between  the 
sale  and  the  proceedings  to  set  it  aside ;  and  in  many  cases  where 
the  purchaser  had  made  lasting  and  valuable  improvements. 
Minors  have  a  right  to  maintain  a  bill  in  chancery  to  impeach 
a  decree,  when  their  rights  are  prejudiced  by  the  decree  en- 
tered.^ And  it  is  also  held  that  an  offer  to  indemnify  minors 
against  loss,  made  after  re-sale  is  ordered,  comes  too  late,  even 
if  it  could  have  any  .force  whatever.^ 

2 — Jennings  v.  Dunphy,  174  111.  that  case  from  others  on  the  facts. 

86.  4 — Johnson  v.  Buck,  220  111.  226. 

3—174   111.  86,  p.  91,  and  cases  5 — Compton  v.  McCafEree,  220  111. 

cited  on  that  page,  distinguishing  137. 


CHAPTER  XXX 


SETTLEMENT  OF  EXECUTORS  AND  ADMINISTRATORS 
— DISTRIBLTTION 


Sec. 

586.  Annual  and  final  settlements 

of  executors  and  administra- 
tors.    Notice  to  heirs. 

587.  How    annual    and    final    ac- 

counts are  treated. 

588.  Notice     required     by    statute 

must  be  given  heirs  before 
final  account  is  approved. 

589.  The    remedy    by    appeal    and 

what  will  be  considered  in 
such  case. 

590.  Closed  estates,  final  order  ef- 

fect of. 

591.  Miscellaneous    provisions    ap- 

plicable in  accounting. 

592.  Distribution  to  creditors. 

593.  Settlement       enforced,       con- 

tempt, interest  on  assets. 


Sec. 

594.  Failure  to  pay  over  devastO' 

vit. 

595.  Liability     of     representatives 

for  interest. 

596.  Removal     of     representatives 

of  estate  by  probate  courts. 

597.  Demand,   arrest,   commitment 

and  imprisonment  of  repre- 
sentative. 

598.  Failure  to  pay  over,  devasta- 

vit, liability  of  sureties. 

599.  Order  for  payment  of  legacies. 

600.  Bond  from  distributees  to  re- 

fund. 

601.  Refunding  by  distributees. 

602.  Suits    between   associate   rep- 

resentatives. 


Sec.  586.  Annual  and  final  settlements  of  executors  and  ad- 
ministrators— notice  to  heirs.  "All  executors  and  administrators 
shall  exhibit  accounts  of  their  administration  for  settlement,  to 
the  county  court  from  which  the  lettere  testamentary  or  of  ad- 
ministration was  obtained,  at  the  first  term  thereof  after  the  ex- 
piration of  one  year  after  the  date  of  their. letters  and  in  like 
manner  every  twelve  months  thereafter  or  sooner,  if  required, 
until  the  duties  of  their  administration  are  fully  completed: 
Provided,  that  no  final  settlement  shall  be  made  and  approved 
by  the  court,  unless  the  heirs  of  the  decedent  have  been  notified 

493 


494  THE  LAW  OF  ESTATES. 

thereof,  in  such  manner  as  the  court  may  direct."^  Under  the 
well  settled  law  of  this  State,  and  ever  since  the  leading  case  of 
Lewis  V.  Lyons,^  it  has  been  continually  held,  the  administrator 
takes  the  absolute  title  to  the  personal  estate  as  trustee  for  the 
heir  or  heirs  or  distributees,  such  being  entitled  to  the  surplus 
after  payment  of  the  costs  of  administration  and  the  just  debts 
against  the  estate  in  the  administrator's  hands.  The  administra- 
tor, therefore  must  discharge  the  duties  of  a  trustee  imposed  by 
the  statute  upon  him.^  Under  this  statute  the  court  of  probate  is 
required  to  enforce  the  settlement  of  the  accounts  of  executors 
and  administrators;  and  such  court  may  act  in  such  matter  on 
its  own  motion  or  on  that  of  interested  parties.*  Thus  an  ex- 
ecutor who  is  also  a  legatee  under  a  will  occupying  a  dual  re- 
lation to  the  administration  of  an  estate,  has  official  acts  to  per- 
form, that  are  under  the  control  of  the  court  of  probate;  and 
this  control  of  such  court  over  the  executor  as  such,  will  continue 
until  the  estate  is  administered  and  the  residue  turned  over 
to  the  acting  executor  as  legatee  under  the  order  of  court.^ 

1 — R.  S.  1845,  p.  56,  section  123.  in    the    county    court   challenging 

Section  112,  chapter  3,  "Adminis-  the  correctness  of  the  annual  re- 

tration  of  Estates."     Starr  &  Cur-  ports  filed  by  a  deceased  executor 

tis  Annotated  Statutes  of  Illinois,  is  in  substance  a  chancery  proceed- 

with  Jones  &  Addington's  supple-  ing,   wherein   the   Supreme   Court 

ments  thereto.  Vol.  1,  pp.  336,  337,  will    review    the   facts    on   appeal 

and  cases  cited;  "Vol.  4,  p.  43,  and  from  the  Appellate  Court.     In  the 

cases  cited;  Vol.  5,  p.  20,  and  cases  same  case  it  is  also  held:     The  ac- 

cited;  Kurd's  R.  S.  of  111.,  1905,  p.  ceptance  by  residuary  legatees  of 

123.  amounts  admitted  to  be  due  by  the 

2 — 13  111.  121.  executor  and  ordered  by  the  court 

3 — Lewis  V.  Lyons,  13  111.   121;  to  be  paid   Ihem  as  their  distrib- 

Penn  v.  Folger,  182  111.  76.  utive  shares,  will  not  estop  such, 

4 — Rowan  v.  Kirkpatrick,  14  111.  before  final  settlement,  from  chal- 

1;    Marsh   v.   The   People,   15    111.  lenging  the  correctness  of  the  ex- 

284;   Duffin  v.  Abbott,  48   111.  17;  ecutor's  report  on  which  the  dis- 

Tracey    v.    Hadden,     78     111.    30;  tribution  is  based. 
Cawes  V.  Whitman,  10  Conn.  121;         5— Ridgeley  v.  The  People,   163 

United  States  v.  Walker,  109  U.  S.  111.   112.     In  this  case  it  is  held: 

258;   Williams  on  Executors,   375,  That  one  who  is,  by  the  terms  of 

2057;  Bliss  v.  Seaman,  165  111.  429.  a  will,  bound  to  close  the  admin- 

In  the  latter  case  it  is  held:    That  istration    of    an    estate    upon    the 

a  claim  filed  by  residuary  legatees  death   of  the  executrix,   has  such 


SETTLEMENT    OF   EXECUTORS,    ETC. 


495 


587.  How  annual  and  final  accounts  are  treated.  A  partial 
or  annual  account  of  an  executor  or  administrator  is  usually 
an  ex  parte  proceeding,  and  is  only  a  judgment  de  bene  esse  and 
only  considered  prima  facie  correct,  and  although  not  excepted 
to  or  appealed  from,  is  open  to  subsequent  correction  or  chal- 
lenge.^ But  upon  a  final  accounting,  the  court  may  hear  testi- 
mony for  the  purpose  of  correcting  former  accounts  and  re- 
ports.'^  And  the  presumption  of  law  is  that  such  court  heard 
only  competent  evidence  relating  to  such  matter.^  In  the  ad- 
justment of  final  accounts  of  the  representatives  of  estates  the 
court  of  probate  has  equitable  jurisdiction  and  may  correct  er- 
roneous charge  of  executor  against  himself.^  But  payment  by 
mistake  without  an  order  of  court  cannot  effect  the  settlement 


an  interest  in  the  matter  of  set- 
tlement as  will  enable  him  to  com- 
pel the  executrix  to  file  a  report, 
as  executrix,  with  the  county  or 
probate  court. 

6 — 7  Am.  &  Eng.  Ency.  of  Law, 
442,  and  cases  cited;  Bond  v.  Lock- 
wood,  33  111.  212;  Long  v.  Thomp- 
son, 60  111.  27;  Bennett  v.  Hanifen, 
87  111.  31;  Bliss  v.  Seaman,  165 
111.  428;  Marshall  v.  Coleman,  187 
111.  569. 

7 — Ford  V.  First  National  Bank, 
100  111.  App.  73;  Same  v.  Same,  201 
111.  120.  In  this  case  it  is  held  to 
be  the  duty  of  an  executor  or  ad- 
ministrator to  guard  the  interests 
of  creditors  of  the  estate,  and 
when  a  claim  is  presented  for  al- 
lowance the  law  will  hold  every 
creditor  to  be  represented  by  such 
executor  or  administrator.  In  that 
case,  the  question  arose  as  to  how 
far  the  probate  court  could  look 
into  and  correct  the  allowance  of 
claims  after  the  term  at  which 
they  are  allowed.  The  court  hold- 
ing, as  between  the  creditors  and 
the  heirs-at-law,  such  may  be  done. 


upon  a  petition  filed  for  the  sale 
of  real  estate  to  pay  debts,  but  a 
distinction  is  to  be  made  of  the 
effect  of  the  allowance  of  a  claim 
as  to  an  heir  and  as  to  a  creditor 
or  legatee.  Ward  v.  Durham,  134 
111.  195.  So  far  as  real  estate  is 
concerned,  the  allowance  of  a  claim 
is  merely  prima  facie  evidence  of 
the  debt  due  by  the  estate.  Noe  v. 
Moutray,  170  111.  169.  But  as 
against  the  personal  estate  an  al- 
lowance of  a  claim  is  concFusive 
until  reversed  by  a  superior  tri- 
bunal, unless  impeached  for  fraud, 
accident  or  mistake,  citing:  Cook 
V.  Wood,  24  111.  295;  Stone  v. 
Wood,  16  111.  177;  Gould  v.  Bailey, 
44  111.  491;  Wheeler  v.  Dawson, 
63  111.  54;  Ward  v.  Durham,  supra; 
Schlink  v.  Maxton,  153  111.  447; 
Sherman  v.  Whiteside,  190  111.  576. 

8 — Emerick  v.  Hileman,  71  111. 
App.    521. 

9— Millard  v.  Harris,  119  111. 
185;  Harris  v.  Millard,  17  111.  App. 
512;  He  ward  v.  Slagle,  52  111.  336; 
Pinneo  v.  Goodspeed,  120  111.  524. 


496  THE  LAW  OF  ESTATES. 

of  the  estate;  and  in  such  case  no  action  can  be  maintained  to 
recover  back  such  payment.i*^  It  is  held  where  there  is  gross 
negligence  that  might  have  been  avoided  by  an  executor  or  ad- 
ministrator, the  court  may  charge  against  the  representative  of 
the  estate  such  sum  of  money  as  might  have  been  realized  by 
such  representative  by  the  exercise  of  reasonable  care  and  dili- 
gence.ii  The  payment  of  claims  by  an  executor,  without  re- 
quiring their  probate,  casts  the  burden  upon  the  executor  of 
showing  their  validity,^  ^ 

588.  Notice  required  by  statute  must  be  given  the  heirs 
before  final  account  is  approved.  A  final  settlement  without 
notice  as  required  by  statute  is  void.^^  The  principle  is  very 
general,  subject  to  few  exceptions,  that  all  persons  whose  rights 
are  to  be  affected  by  an  order  or  judgment  of  a  court,  must  have 
notice,  actual  or  constructive,  of  the  pendency  of  the  proceed- 
ing against  them.  Parties  in  interest  must  be  parties  in  a  suit 
or  proceeding  which  may  affect  their  interests.  The  case  cited 
is  a  good  illustration  of  the  propriety  of  this  rule;  for,  had  the 
distributees,  or  their  guardians,  been  notified  that  an  order  of 
distribution  was  to  be  entered,  they  could  have  resisted  that 
portion  of  the  order  which  allowed  appellant,  as  widow  one- 
third  of  the  surplus,  the  legality  of  which  is  not  pretended  by 
her  counsel.  Were  this  a  bill  in  chancery  for  distribution,  it 
will  not  be  denied  all  the  distributees  would  be  made  parties.^* 
The  principle  that  notice  to  parties  must  be  given,  to  conclude 
them,  pervades  the  entire  realm  of  jurisprudence.^^  The  notice 
required  by  the  statute  is  presumed  to  have  been  given,  where 

10— Foskett  V.  Wolf,  19  111.  App.  13— Long  v.   Thompson,    60   111, 

33;    Lochenmeyer  v.  Fogarty,  112  27;   Mitford's  Ch.  39;   Story's  Eq. 

111.  572.  PI.  185. 

11 — In    re    Corrington's   Estate,  14 — Morris  v.  Hogle,  37  111.  150; 

124  111.  363.  Long  v.  Thompson,  60  111.  27. 

12 — Emerick  v.  Hileman,  177  111.  15 — Hopkins  v.  McCann,   19  111. 

368;  Litch  v.  Clinch,  136  111.  410;  116;    Collins    v.    Kinnare,    89    111. 

Holeton    v.    Thayer,    89    111.    App.  App.   241;    Cagney   v.   O'Brien,   83 

187.  111.    72;    Dickson    v.   Hitt,    98    111. 

300. 


SETTLEMENT    OF   EXECUTORS,    ETC.  497 

the  court  acts  upon  final  report  of  administrator;  but  such 
presumption  may  be  overcome  by  evidence  showing  there  was 
in  fact  no  notice.^*'  But  the  final  settlement  may  be  impeached 
for  fraud  by  proper  proceedings  in  a  general  court  of  ehan- 
cery.i''^  It  is  held,  that  a' notice  to  widow  and  heirs  of  a  mo- 
tion to  set  aside  order  approving  executor's  report  is  unneces- 
sary.18  In  the  case  in  question  it  was  found  the  court  had  juris- 
diction to  entertain  a  motion  to  set  aside  the  order  approving 
a  report  for  an  omission  therein,  as  the  result  of  fraud  or  mis- 
take and  make  provision  for  fees.  It  being  held,  that  in  the 
absence  of  an  express  waiver  by  an  executor  of  his  right  to  fees, 
it  is  the  duty  of  the  court  of  probate  to  determine  the  amount 
to  be  allowed  him,  and  the  fact  that  the  executor  makes  no  entry 
for  fees  in  his  final  report,  is  not  a  waiver,  since  he  has  no  right 
to  fix  his  own  fee. 

589.  The  remedy  by  appeal  and  what  will  be  considered  in 
such.  case.  It  has  been  repeatedly  held  that  each  item  in  an 
administrator's  account  is  a  separate  claim  depending  alone 
upon  its  own  merits,  having  no  connection  with  the  other  items ; 
and  that  an  appeal  by  the  administrator  from  an  order  or  judg- 
ment, rejecting  one  of  his  claims  against  the  estate,  only  brings 
up  for  review  the  propriety  of  the  ruling  in  respect  to  such 
rejected  claim.^^  In  a  recent  case  it  is  again  held,  that  an 
appeal  from  an  order  disallowing  part  of  claim  does  not  bring 
up  for  review  other  parts  of  such  claim  allowed  in  the  court 
below.2o 

590.  Closed  estate — final  order — effect  of.  Final  settlement 
approved  by  the  court  is  conclusive  between  distributee  and 


16— Eagan  v.  Clark,  87  111.  App.  185;  Curtis  v.  Brooks,  71  111.  125 

248.  Morgan    v.    Morgan,    83    111.    196 

17 — Anderson   v.   Anderson,   178  Marshall  v,  Coleman,  187  111.  585 

111.  164.  People  v.  Kohlsaat,  168  111.  39. 

18— Griswold   v.   Smith,  221   111.  20— Peterman    v.    U.    S.   Rubber 

341.  Co.,  221  111,  581. 

19— Millard   v.    Harris,    119    111. 
31 


498  THE  LAW  OF  ESTATES. 

executor,  administrator  or  ^lardian  and  their  sureties.21  No 
collateral  attack  can  be  made  upon  an  order  of  the  court  of 
probate  approving  representative's  final  account  and  report.22 
Where  an  administrator  completes  the  settlement  of  an  estate, 
and  an  order  of  final  settlement  is  signed  by  judge,  but  not 
entered  of  record,  the  court  of  probate  may  enter  it  nunc  pro 
tunc?^  And  it  is  held  an  estate  is  closed,  notwithstanding 
no  final  order  of  discharge  is  entered,  if  it  appears  the  executor 
has  filed  his  final  account  by  which  he  shows  a  complete  admin- 
istration of  the  estate,  and  which  account  has  been  eonsidared 
and  approved  by  the  court  of  probate.^* 

591.    Miscellaneous  provisions  applicable  in  accounting.    A 

payment  to  heirs  may  be  ordered  at  the  time  of  presenting  first 
account,  without  waiting  for  expiration  of  year  from  grant 
of  letters,  particularly  is  this  so,  where  no  creditor  or  other 
interested  party  are  affected  by  such  order.^^  If  an  estate  is 
declared  insolvent  and  closed  under  section  59  of  the  Adminis- 
tration Act,26  the  administrator  in  that  case,  is  not  required 
to  give  notice  of  final  settlement.^'^  A  discharge  of  an  adminis- 
trator before  all  debts  are  paid  is  void  as  to  unpaid  creditors, 
who  by  a  proper  proceeding  may  pursue  the  sureties  on  the 
bond  of  administrator. 28  Omission  to  make  a  final  report  may 
make  administrator  liable.-^  But  one  who  receives  from  an 
executor  more  money  than  he  is  entitled  to,  cannot  complain 
of  erroneous  credits  in  the  executor's  account,  particularly, 
where  there  is  no  fraud  chargeable  to  the  executor.^"    The  bal- 

21— People  V.  Lease,  71  111.  394.         27— Wood    v.    Johnson,    13    111. 
22— People  v.  Kohlsaat,  168  111.     App.  548. 
3g_  28 — Diversey  v.  Johnson,  93  111. 

23-Frame  v.  Frame,  16  111.  125.     ^^'^'  Blanchard  v.  Williams.  70  111. 

647. 
24-People   v.   Kohlsaat,    66   111.         29-Rucker   v.   Redmon,    67    111. 
App.  507;    Same  v.  Same,  168  111.     jg^      g^^   ^j^^   ^^^^^^^^ 

chapter  3,  "Administration  of  Es- 
25— Reynolds  v.   People,   55  111.     tates."     {Post  593.) 
328.  30— Williams  v.  Rhodes,   81   111. 

26— Ante  425.  571. 


SETTLEMENT   OF   EXECUTORS,    ETC.  499 

ance  from  an  ancillary  administration  should  be  returned  to  the 
principal  administration.^^ 

592.  Distribution  to  creditors.  "Upon  every  such  settlement 
of  the  accounts  of  the  executor  or  administrator,  the  court  shall 
ascertain  the  whole  amount  of  moneys  and  assets  belonging  to 
the  estate  of  the  deceased,  which  have  come  into  the  hands  of 
such  executor  or  administrator,  and  the  whole  amount  of  debts 
established  against  such  estate;  and  if  there  is  not  sufficient  to 
pay  the  whole  of  the  debts,  the  moneys  aforesaid,  shall  be  ap- 
portioned among  the  several  creditors  pro  rata,  according  to 
their  several  rights,  as  established  by  this  Act;  and  thereupon 
the  court  shall  order  such  executor  or  administrator  to  pay  the 
claims  which  have  been  allowed  by  the  court,  according  to  such 
apportionments.  And  the  court,  upon  every  settlement,  shall 
proceed  in  like  manner  until  all  the  debts  are  paid,  or  the  as- 
sets exhausted.  "32  Where  an  administrator  acting  under  an 
honest  belief  that  the  estate  he  represented  was  solvent,  paid  a 
creditor  more  than  his  pro  rata  distributive  share  of  such  estate ; 
and  afterwards  brought  suit  at  law  against  such  creditor  for 
money  had  and  received  for  the  use  of  the  estate;  held  action 
was  rightly  brought  under  the  circumstances.*^^  An  interlocu- 
tory order  of  distribution  made  by  the  probate  court  was  by 
that  court  corrected  at  a  term  subsequent  to  the  term  at  which 
such  order  was  entered;  it  being  held,  the  probate  court  had 
power  to  correct  its  records  at  a  subsequent  term.-^^ 

593.    Settlement    enforced — contempt — interest    on    assets. 

' '  The  county  courts  of  this  State  shall  enforce  the  settlements  of 

31 — Young    V.    Wittenmyre,    123  124;    see  also  the  following  cases 

111.  303.  supporting  the  statute,  and  in  ad- 

32 — R.  S.  1845,  p.  562,  sec.  124.  dition  thereto  see  Ante  463;   Am- 

Section   113,  chapter  3,  "Adminis-  mons   v.    People,   11   111.    6;    Arm- 

tration  of  Estates."  Starr  &  Curtis  strong    v.     Cooper,     11     111.     560; 

Annotated     Statutes     of     Illinois,  Phelps  v.  People,  78  111.  149;  Dun- 

with  Jones  &  Addington's  Supple-  lop  v.  McGee,  98  111.  287;  Mack  v. 

ments  thereto.  Vol.  1,  p.  338,  and  Woodruff,  87  111.  570. 

cases  cited;  Vol.  4,  p.  44,  and  cases  33— Wolf  v.  Beaird,  123  111.  585. 

cited;  Hurd's  R.  S.  of  111.,  1905,  p.  34— Kinne  v.  Schumacher,  65  111. 

App.  344. 


500  THE  LAW  OF  ESTATES. 

estates  within  the  time  prescribed  by  law,  and  upon  the  failure 
of  an  executor  or  administrator  to  make  settlement  at  the  next 
term  of  the  court  after  the  expiration  of  said  time,  the  court 
shall  order  a  citation  to  issue  to  the  sheriff  of  the  county  where 
the  executor  or  administrator  resides,  or  may  be  found,  requir- 
ing said  executor  or  administrator  to  appear  at  the  next  term 
of  the  court  and  make  settlement  of  the  estate,  or  show  cause 
why  the  same  is  not  done;  and  if  the  executor  or  administrator 
fails  to  appear  at  the  time  required  by  such  citation,  the  court 
shall  order  an  attachment  requiring  the  sheriff  of  the  county 
where  the  executor  or  administrator  resides,  or  may  be  found, 
to  bring  the  body  of  said  executor  or  administrator  before  the 
court ;  and  upon  failure  of  an  executor  or  administrator  to  make 
settlement  under  the  order  of  the  court  after  having  been  so 
attached,  he  may  be  dealt  with  as  for  contempt,  and  shall  be 
forthwith  removed  by  the  court,  and  some  discreet  person  ap- 
pointed in  his  stead ;  the  costs  of  such  citation  or  attachment  to 
be  paid  by  the  delinquent  executor  or  administrator,  and  the 
court  shall  enter  a  judgment  therefor,  and  a  fee  bill  may  issue 
thereon.  All  moneys,  bonds,  notes  and  credits  which  any  ad- 
ministrator or  executor  may  have  in  his  possession  or  control 
as  property  or  assets  of  the  estate,  at  a  period  of  two  years  and 
six  months  from  the  date  of  his  letters  testamentary  or  of  ad- 
ministration, shall  bear  interest,  and  the  executor  or  adminis- 
trator shall  be  charged  interest  thereon  from  said  period  at  the 
rate  of  ten  per  cent,  or  after  two  years  and  six  months  from 
any  subsequent  time  that  he  may  have  discovered  and  received 
the  same,  unless  good  cause  is  shown  to  the  court  why  such 
should  not  be  taxed.  "^'^ 

35 — Laws  of  1859,  p.  95,  section  cited;  Kurd's  R.  S.  of  111.,  1905,  p. 

10.     Section   114,  chapter  3,  "Ad-  124;   see  also  section  70  Adminis- 

ministration  of  Estates."     Starr  &  tration   Act   as   amended    in    1903 

Curtis  Annotated  Statutes  of  Illi-  (ante  482),  by  which  the  time  for 

nois,  with  Jones  &  Addington's  Sup-  settlement  and  distribution  of  es- 

plements    thereto,   vol.    1,    p.    339,  tates  was  reduced  from  two  to  one 

and  ca.ses  cited;  vol.  4,  p.  44,  and  year.     See  also  section  7,  chapter 

^ases  cited;  vol.  5,  p.  20,  and  cases  148,  entitled  "Wills"   (chapter  vii. 


SETTLEMENT    OF   EXECUTORS,    ETC.  501 

594.  Failure  to  pay  over— devastavit.  "If  any  executor  or 
administrator  shall  fail  or  refuse  to  pay  over  any  moneys  or 
dividend  to  any  person  entitled  thereto,  in  pureuance  to  the 
order  of  the  county  court,  lawfully  made,  within  thirty  days 
after  demand  made  for  such  moneys  or  dividend,  the  court, 
upon  application,  may  attach  such  delinquent  executor  or  ad- 
ministrator, and  may  cause  him  to  be  imprisoned  until  he  shall 
comply  with  the  order  aforesaid,  or  until  such  delinquent  is  dis- 
charged by  due  course  of  law;  and  moreover,  such  failure  or 
refusal  on  the  part  of  such  executor  or  administrator  shall  be 
deemed  and  taken  in  law  to  amount  to  a  devastavit,  and  an  ac- 
tion upon  such  executor's  or  administrator's  bond,  and  against 
his  securities,  may  be  forthwith  instituted  and  maintained;  and 
the  failure  aforesaid  to  pay  such  moneys  or  dividend,  shall  be 
a  sufficient  breach  to  authorize  a  recovery  thereon.  "^^ 

595.  Liability  of  representatives  for  interest.  Section  114 
of  the  Administration  Act,^"^  requires  that  the  administrator  be 
charged  with  interest  at  the  rate  of  ten  per  cent  per  annum  on 
balance  in  his  hands  as  administrator  from  the  period  of  two 
years  and  six  months  after  the  issuance  to  him  of  the  letters  of 
administration,  unless  good  cause  is  shown  why  he  should  not  be 
so  charged.  And  the  burden  of  showing  an  excuse  for  not  mak- 
ing a  distribution  within  the  legal  time  is  cast  upon  the  admin- 
istrator.38  After  the  time  for  presenting  claims  has  expired 
and  the  administrator  has  filed  a  report  showing  a  cash  balance 
in  his  hands  belonging  to  the  heirs  of  decedent,  he  should  ap- 

ante  125),  reducing  time  for  con-  1905,  p.  124.     See  also  section  13, 

test  of  will  from  two  to  one  year,  et  seq.,  chapter  103,  entitled  "Of- 

36— R.  S.  1845;  p.  562,  sec.  126.  ficial  Bonds"  Starr  &  Curtis,  etc.. 

Section  115,  chapter  3,  "Adminis-  "Vol.  2,  p.  2835,  and  cases  cited;  Vol. 

tration  of  Estates."  Starr  &  Curtis  4,  p.  907,  and  cases  cited;   Kurd's 

Annotated     Statutes     of     Illinois,  R.   S.   of   111.,   1905,   p.   1419.     See 

with  Jones  &  Addington's  Supple-  McDonald  v.  People,  222   111.  325; 

ments  thereto,  vol.  1,  pp.  340,  341,  also    (post  597). 
and  cases  cited;  vol.  4,  p.  44,  and         37 — Ante  593,  statute  quoted, 
cases  cited;    Kurd's  R.   S.  of  111.,         38 — Haskins  v.  Martin,   103   111. 

App.  115. 


502  THE  LAW  OF  ESTATES. 

ply  for  an  order  of  distribution.  It  is  part  of  his  duty  to  do 
so,^^  And  if  he  fails  to  do  so  after  two  years  and  six  months 
from  the  date  of  letters  of  administration  he  is  chargeable  with 
ten  per  cent  annual  interest  on  moneys,  notes,  bonds  and  credits 
in  his  possession  and  control  as  assets  of  the  estate.^^  And  he 
may  be  liable  for  interest  before  that  time,  if  it  appears  he  re- 
ceives interest  on  the  funds  of  the  estate  in  his  hands.*^  The 
term  "settlement"  as  used  in  section  114,  refers  to  an  account- 
ing to  ascertain  the  condition  of  the  estate,  that  the  order  for 
distribution  may  follow.*^ 

596.  Removal  of  representatives  of  estate  by  probate  courts. 
Power  is  conferred  on  such  courts  by  the  statutes  of  Illinois, 
to  remove  representatives  of  estates  for  many  causes,  therein 
set  forth.'*^  It  will  be  found  from  an  examination  of  the  au- 
thorities in  point,  that  the  established  doctrine  of  this  State,  is, 
that  courts  of  probate,  must  consistently  and  strictly  follow 
the  statute  when  proceeding  to  remove  any  representative  of  an 
estate  from  office.  And  it  is  well  settled  in  this  State,  that  where 
such  courts  assume  incidental  power  and  remove  a  representa- 
tive under  such  assumed  power,  disregarding  the  statute  in  the 
exercise  of  such  power,  their  orders  in  that  regard  will  not  be 
sustained;  particularly  is  this  true,  where  such  court  assumes 
jurisdiction  under  special  statutory  laws  in  cases  where  a  pen- 
alty attaches,  or  an  offense  is  committed  criminal  in  its  na- 
ture.*^ In  the  case  of  Ra/nifan  v.  Needles,'^^  where  section  114 
of  the  Administration  Act  formed  the  basis  of  the  proceeding  for 

39— /TO  re  Estate  of  Schofield,  99  iZ—Ante  593,  sec.  114,  chapt.  3, 

111.   513;   Randolph  v.   Trustees  of  "Administration  of  Estates." 

Schools,  26  111.  App.  241;   Haskins  44— See  sections   26,   30,   31,  32, 

V.  Martin,  103  111.  App.  115.  114,    115,   chapter   3,    "Administra- 

40 — Marshall    v.    Coleman,    1S7  tion   of   Estates."     Ante  430,   431, 

111.  556.  433,  435,  593,  594,   where  sections 

41 — In  re  Estate  of  Schofield,  99  of  statute  in  question  are  set  forth 

111.  513;   Hough  v.  Harvey,  71  III.  at  large;  see  also  cases  cited  under 

72.  sections  of  this  work  noted. 

42— Randolph     v.     Trustees     of  45—108  111.  403. 
Schools.  26  111.  App.  241. 


SETTLEMENT    OF   EXECUTORS,    ETC.  503 

issuing  a  citation  against  an  executor,  directing  him  to  appear 
before  the  county  court  at  a  day  fixed  ''and  present  his  accounl 
of  said  estate  for  settlement  as  said  executor,"  the  county  court 
assuming  power  under  such  citation  to  remove,  did  remove  such 
executor  from  his  office.  It  is  held  in  that  case,  page  411 :  ' '  The 
coimty  court  has  no  power,  in  any  case,  to  remove  an  executor 
or  administrator  upon  a  mere  citation  to  appear  and  settle  his 
accounts.  The  power  of  removal  is  not  an  incident  to  the  pro- 
ceeding under  such  a  citation,  and  hence  any  attempted  removal 
was  unauthorized.  The  only  legal  consequences  which  attach 
to  one's  failure  to  appear  and  make  settlement  of  his  accounts, 
is,  that  he  subjects  himself  to  an  attachment,  as  in  case  of  a  con- 
tempt, and  in  such  case  it  is  made  the  duty  of  the  court  to  order 
an  attachment  for  his  arrest,  and  when  brought  before  the  court, 
if  he  still  neglects  or  refuses  to  make  settlement  of  his  accounts, 
the  court  is  then  required  to  deal  with  him  as  for  a  contempt, 
and  to  forthwith  remove  him.  The  removal  is  required  not  only 
in  the  interest  of  the  estate,  but  it  is  doubtless  also  intended 
as  a  punishment  for  contempt.  To  remove  one  before  he  is  at- 
tached and  brought  into  court,  would  be  in  effect  to  punish  him 
for  an  alleged  offense  he  has  had  no  opportunity  of  answering, 
which  is  inconsistent  with  the  genius  and  spirit  of  our  free  in- 
stitutions, as  well  as  violative  of  the  organic  law  of  the  State.'*^ 

597.  Demand — arrest — commitment  and  imprisonment  of 
representative.  In  the  case  of  Haines  v.  The  People,*''  citing 
from  page  177,  it  is  held:  Before  the  probate  court  is  war- 
ranted in  making  a  commitment  in  any  case  under  section  114 
of  the  Administration  Act,  it  must  appear,  among  other  things, 
that  the  administrator  has  failed  or  refused  to  pay  over  the 
moneys  in  his  hands,  to  the  pei-son  or  persons  entitled  thereto, 
in  pursuance  of  the  order  of  the  court,  within  thirty  days  after 
demand  made  for  such  moneys.     A  demand  upon  the  adminis- 

46 — Holding  the  same,  as  Hani-     ler  v.  Hider,   9   Colo.   Ct.  of  App. 
fan     V.   Needles,     the     following:     56. 
Monroe  v.  People,  102  111.  406;  Mil  47—97  111.  161. 


504  THE  LAW  OF  ESTATES. 

trator  for  the  moneys  is  clearly  one  of  the  necessary  elements 
that  enter  into  the  offence  which  authorizes  such  commitment." 
Page  178 :  "On  principle,  the  fact  of  a  demand  as  a  constituent 
part  of  the  offense  contemplated  by  the  statute,  could  no  more 
be  dispensed  with  by  mere  agreement  than  the  element  of  mal- 
ice in  murder,  or  felonious  intent  in  larceny.  As  well  might 
it  be  contended  that  a  thing  may  exist  as  a  whole  without  all 
of  its  constituent  parts.  It  is  impossible  in  the  very  nature  of 
things.  And  it  is  equally  impossible  by  mere  private  agreement 
to  dispense  with  any  of  the  elements  that  enter  into  a  criminal 
offence;  the  power  to  do  that  is  vested  in  the  legislature  alone. 
It  may  be  urged  that  having  waived  the  demand,  the  adminis- 
trator is  just  as  culpable  for  failing  to  pay  over  the  money  as 

if  the  demand  had  been  made The  conclusive  answer 

to  this  is,  that  the  offence  consists  in  failing  to  pay  over  after 
demand  made,  and  not  after  demand  waived,  and  there  is  no 
power  outside  of  the  legislature  to  substitute  one  for  the  other. ' ' 
It  is  also  held  in  the  same  case,  that  a  writ  of  error  from  the 
Supreme  court  lies  to  review  the  order  of  the  probate  court 
committing  for  contempt.  And  it  is  held,  where  an  order  of  the 
court  of  probate  granted  time  for  payment,  demand  must  be 
made  after  expiration  of  such  order.  Demand  made  prior  to 
the  entry  of  such  an  order  is  a  nullity.'*^  The  court  can  im- 
prison only  upon  state  of  facts  mentioned  in  statute;  and  be- 
fore committing  administrator  the  court  should  find  the  amount 
of  money,  property  or  choses  in  action  in  the  hands  of  the  ad- 
ministrator or  that  should  be  in  hand  belonging  to  the  estate. 
For  if  it  should  appear,  the  administrator  had  no  money  of  the 
estate  in  his  hands  to  pay  a  claim,  the  court  could  not  commit 
or  imprison.*^  There  must  be  evidence  of  a  demand  for  the 
payment  of  money  due  the  petitioner  under  the  order  of  the 
court.^"     Where  an  administrator  committed  by  the  order  of 

48— Johnson  v.  Von  Kettler,   66  291;    Von   Kettler  v.   Johnson,   57 

111.   63;    Wright  v.   People,   61   111.  111.  109. 

382.  50— Blake  v.  People,  161  111.  74. 

49 — Gorton    v.    Frizzell,    20    111.  In  this  case,  the  executor  was  com- 


SETTLEMENT    OF   EXECUTORS,    ETC.  505 

the  county  court,  for  a  failure  to  pay  a  petitioning  claimant, 
sets  up  as  a  defense,  that  he,  the  administrator  was  surety  on 
a  certain  note  given  by  the  petitioning  claimant,  and  as  such 
administrator,  advanced  and  paid  from  the  funds  of  the  estate 
the  said  note,  with  the  agreement,  between  himself  and  the 
claimant,  that  the  amount  so  advanced,  should  be  deducted  from 
any  money  due  the  petitioning  claimant  under  the  final  order 
of  court  in  the  estate  he  represented,  was  held  to  be  a  good  de- 
fense to  the  action  of  the  county  court  committing  for  con- 
tempt.^i  And  it  also  appears  that  a  set-off  will  be  allowed  as 
a  matter  of  common  justice,  where  the  administrator  committed 
or  sought  to  be  committed,  is  properly  entitled  to  such  against 
a  claimant  in  the  county  court  in  such  matter.^  2  n  ig  j^eid  that 
section  115  of  the  Administration  Act,  providing  for  the  im- 
prisonment of  an  executor  or  administrator  refusing  to  pay  over 
money  "within  thirty  days  after  demand,"  does  not  postpone 
the  bringing  of  a  civil  action  against  his  bondsman  until  the 
expiration  of  that  period.  A  judgment  finding  amount  due  from 
an  administrator  and  approving  his  report  by  the  probate  court 
is  binding  in  a  suit  on  his  official  bond,  and  cannot  be  reviewed 
or  set  aside  in  a  suit  upon  the  administrator's  bond,  unless  it  be 
impeached  for  fraud.^^ 

598.  Failure  to  pay  over — devastavit — liability  of  sureties. 
A  devastavit  is  a  mismanagement  and  waste  by  the  personal 
representative  of  the  estate  and  the  proceeds  arising  therefrom 
entrusted  to  executor,  administrator,  guardian,  etc.,  by  which 

mitted    to    jail    for    contempt    of  evidence  no  order  of  commitment 

court,  in  failing  to  pay  over  a  sum  was  authorized. 

of  money  ordered  to  be  paid  by  the  51 — Blake  v.  People,  161  111.  74. 

county  court.     There  was  no  evi-  52 — Walker    v.    Chovin,    16    111. 

dence  at  the  hearing  of  the  peti-  489;  Heckenkemper  v.  Dingwehrs^ 

tion  of  any  demand  upon  the  de-  32   111.   538;    Blake  v.  People,   161 

fendant  for  the  money  due  the  peti-  III.  74. 

tioner  under  the  order  as  required  53 — See   section   115,   chapter   3, 

by  section  115,  chapter  3,  "Admin-  "Administration  of  Estates."  Ante 

istration   of  Estates,"   and  it   was  594,    statute    set    forth    at    large; 

held  that  because  of  such  lack  of  McDonald  v.  Peopis,  222  111.  325. 


506  THE  LAW  OF  ESTATES. 

a  loss  occurs  to  the  estate  they  represent.  It  will  take  place, 
when  a  direct  abuse  of  the  estate  results  from  the  action  of  such 
representative  as,  where  he  sells,  embezzles  and  converts  to  his 
own  use  the  estate  entrusted  to  him ;  or  by  mal-administration,  in 
the  payment  of  claims  which  are  not  owing,  or  by  failing  to 
pay  others  which  should  be  paid,  or  paying  claims  out  of  the 
order  or  class  in  which  they  should  be  paid;  or  by  paying  lega- 
cies before  all  the  debts  have  been  satisfied;  or  by  the  neglect 
of  the  representative  to  sell  goods  in  a  reasonable  time,  if  per- 
ishable, before  wasted.-^''  Where  an  administrator,  on  the  sale 
of  property  belonging  to  the  estate,  received  the  notes  of  the 
purchasers  with  security,  and  it  resulted  that  the  principals  and 
sureties  were  insolvent;  held,  this  will  show  prima  facie,  that 
the  administrator  had  neglected  his  duty,  and  was  gTiilty  of  a 
devastavit.^^  The  unauthorized  loaning  of  estate  money  by  the 
executor  is  a  devastavit.^^  Acts  of  negligence  in  respect  of  the 
control  or  disposition  of  the  estate,  whereby  the  rights  of  cred- 
itors or  legatees,  or  parties  entitled  in  distribution,  are  defeated, 
amount  to  a  devastavit.^'  Before  the  enactment  of  the  legisla- 
ture of  this  State,  providing  for  the  bringing  of  suits  on  bonds 
of  any  public  officer,  and  any  and  all  their  sureties,  or  against 
one  or  more  of  them  jointly  or  severally,  and  the  extending  the 
enactments  to  executors,  administrators,  etc.,  it  was  necessary 
to  prove  a  devastavit  in  order  to  recover.  But  ever  since  the 
statute  went  into  effect,  it  is  only  necessary  by  pleadings  in  suit 
on  bond,  to  recite  and  aver  with  sufficient  certainty  the  breach 
of  the  bond  and  the  matter  complained  of  for  which  the  sure- 
ties are  liable.^^  The  statute  enters  into  and  forms  a  part  of  an 
official  bond.^^  And  where  the  bond  is  conditional  for  the  faith- 
ful performance  of  the  duties  of  the  office,  the  sureties  are  liable 

54 — Bouvier      Law      Dictionary,  57 — In  re  Corrington  Estate,  124 

"Devastavit."  111.  363;  Dusing  v.  Nelson,  7  Colo. 

55— Curry  v.  People,  54  111.  263.  184;    Howe  v.  People,  7  Colo.   Ct. 

56 — Johnson    v.    Maples,    49    111.  of  App.  535. 

101;  Graffenreid  v.  Kundert,  34  111.  58— Tupker  v.  People,  87  111.  76. 

App.  483.  59 — In  re  Estate  of  Ramsey  v. 

People,  197  111.  586. 


SETTLEMENT    OF   EXECUTORS,    ETC.  5Q7 

for  all  duties  imposed  upon  the  principal,  which  come  within 
the  scope  of  his  office ;  whether  required  by  laws  enacted  before 
or  after  the  execution  of  the  bond.^o  g^^  while  the  general 
and  well  settled  rule  is  to  the  effect,  that  the  final  account  and 
report  of  an  executor  or  administrator  presented  to  the  court 
of  probate,  and  by  it  heard  and  approved  is  conclusive  by  the 
adjudication  in  that  proceeding,  it  is  also  well  settled,  that  judg- 
ment orders  of  that  character  arc  not  to  be  extended  by  mere 
intendment,  to  matters  not  necessarily  involved  in  the  determi- 
nation.6'  Until  a  final  settlement,  if  it  appears  there  be  omis- 
sions or  mistaJves  in  the  reports  theretofore  made,  the  probate 
court  may  correct  such  mistakes,  as  may  also  any  court  to  which 
an  appeal  be  taken.62  And  so  it  is  held  a  report  of  the  executor 
thus  presented,  upon  which  there  has  been  no  adjudication  by 
the  court  of  probate,  cannot  be  considered  conclusive  on  the 
sureties.^^ 

599.  Order  for  payment  of  legacies.  "Whenever  it  shall 
appear  that  there  are  sufficient  assets  to  satisfy  all  demands 
against  the  estate,  the  court  shall  order  the  payment  of  all  lega- 
cies mentioned  in  the  will  of  the  testator,  the  specific  legacies 
being  the  first  to  be  satisfied."''* 

600.  Bond  from  distributees  to  refund.  "Executors  and 
administrators  shall  not  be  compelled  to  pay  legatees  or  dis- 
tributees until  bond  and  security  is  given  by  such  legatees  or 

60 — Frendenstein  v.  McNier,  81  408-409.  See  sections  1,  13,  chap- 
Ill.,  208;  Ramsey  v.  People,  197  111.  ter  103,  "Official  Bonds."  Starr  & 
586;  Longan  v.  Taylor,  130  111.  Curtis  Annotated  Statutes,  Vol.  2, 
412;  Mecham's  Public  Offices  and  pp.  2831  to  2835,  and  cases  cited; 
Officers,  sections  295,  296.  Kurd's  R.  S.  of  111.,  1905,  pp.  1417, 

61 — Jessup    V.    Jessup,    102    111.  1419. 
480;    People   v.   Hoffman,    182    111.         64— R.   S.  1845,  p.  563,  sec.  127, 

408.  Section  116,  chapter  3,  "Adminis- 

62 — Bruce    v.    Doolittle,    81    111.  tration  of  Estates."     Starr  &  Cur- 

103;    Bennett   v.    Hanifin,    87    111.  tis  Annotated  Statutes  of  Illinois, 

31.  Vcl.  1,  pp.  341,  342,  and  cases  cited 

63 — People  v.  Hoffman,   182   111.  under   section   of   statute;    Hurd's 

R.  S.  of  111.,  1905,  p.  124. 


508  THE  LAW  OF  ESTATES. 

distributees  to  refund  the  due  proportion  of  an}-  debt  which  may 
afterwards  appear  against  the  estate,  and  the  costs  attending  the 
recovery  thereof;  such  bond  shall  be  made  payable  to  such  ex- 
ecutor or  administrator,  and  shall  be  for  his  indemnity  and 
filed  in  court.  "^^  A  creditor  who  has  recovered  a  judgment 
on  his  claim  against  an  estate  in  the  county  court,  is  not  a 
"distributee"  within  the  meaning  of  sections  116  and  117  of  the 
Administration  Act.  These  sections  must  be  construed  together 
with  section  1,  Chapter  39,  entitled  "Descent"  as  the  several 
sections  are  in  pari  materia.^^  "Distributee."  Section  117  is 
mandatory.^'^  Where  a  legatee  has  accepted  from  the  executor 
a  certificate  of  deposit  belonging  to  the  assets  of  the  estate,  and 
paid  a  balance  thereon,  and  the  bank  upon  which  certificate  is 
drawn  fails  before  the  maturity  of  the  certificate,  he  cannot 
sustain  a  claim  against  the  estate  on  a  guarantee  by  the  ex- 
ecutor.^8  And  it  appears  to  be  held,  that  where  a  claim  against 
an  estate  is  pending  for  adjudication,  it  is  improper  to  order 
money  paid  out  to  the  legatee.^^  As  the  recent  statute  fixes  the 
time  for  exhibiting  claims  against  an  estate  at  one  year  from 
the  date  of  issuing  letters  testamentary  or  of  administration,  it 
would  seem  a  proper  construction  of  section  117  is,  to  apply  the 
rule  or  doctrine,  that  the  statute  requiring  a  refunding  bond 
from  a  distributee  or  legatee,  applies  solely  to  a  case,  where  the 
statutory  period  for  exhibiting  claims  has  not  run.  That  after 
such  time  no  bond  can  be  exacted.  The  intention  of  the  statute 
is  to  indemnify  and  keep  harmless  the  administrator  or  executor 
against  claims  properly  chargeable  to  heirs,  devisees  or  legatees 

65— R.   S,  1845,  p.  563,  sec.  129.  559;  People  v.  Admire,  39  111.  251; 

Section  117,  chapter  3,  "Adminis-  Windom    v.    Becker,    52    111.    342; 

tration  of  Estates."     Starr  &  Cur-  Bouvier's    Law    Dictionary,    "Dis- 

tis  Annotated  Statutes  of  Illinois,  tributee." 

with  Jones  &  Addington's  Supple-  67— Graffenreid   v.    Kundert,    34 

ments  thereto.  Vol.  1,  p.  342,  and  111.  App.  483. 

cases  cited;  Vol.  5,  p.  20,  and  cases  68— Graffenreid    v.    Kundert,    34 

cited;  Kurd's  R.  S.  of  111.,  1905,  p.  111.  App.  483. 

124.  69— Sherman   v.    Saylor,   36   IlL 

66— Wolf  V.  Griffin,  13  111.  App.  App.  356. 


SETTLEMENT    OF   EXECUTORS,    ETC.  509 

to  whom  partial  distribution  may  have  been  madeJ''  If  an  ad- 
ministrator becomes  an  executor  or  distributee,  he  is  not  re- 
quired to  execute  a  refunding  bond.'^^ 

601.  Refunding  by  distributees.  "When,  at  any  time  after 
the  payment  of  legacies  or  distributive  shares,  it  shall  be  neces- 
sary that  the  same  or  any  part  be  refunded  for  the  payment  of 
debts,  the  county  court,  on  application  made,  shall  apportion 
the  same  among  the  several  legatees  or  distributees  according  to 
the  amount  received  by  them,  except  the  specific  legacies,  which 
shall  not  be  required  to  be  refunded,  unless  the  residue  is  in- 
sufficient to  satisfy  such  debts;  and  if  any  distributee  or  lega- 
tee refuses  to  refund  according  to  the  order  of  the  court,  within 
sixty  days  thereafter,  and  upon  demand  made,  such  refusal  shall 
be  deemed  a  breach  of  his  bond  given  to  the  executor  or  admin- 
istrator aforesaid,  and  an  action  may  be  instituted  thereon  for 
the  use  of  the  party  entitled  thereto;  and  in  all  cases  where 
there  is  no  bond,  an  action  of  debt  may  be  maintained  against 
such  distributee  or  legatee,  and  the  order  of  the  court  shall  be 
evidence  of  the  amount  due."^^  Where  an  administrator,  after 
the  settlement  of  an  estate  and  the  payment  of  the  balance  in 
his  hands  to  the  heirs,  is  compelled  to  pay  a  new  claim  unknown 
to  him  within  the  two  years  after  the  grant  of  his  letters,  he  or 
his  executors  may  maintain  a  bill  in  equity  against  such  heirs, 
to  reimburse  him  or  his  estate  for  the  sum  so  paid,  although  no 
refunding  bond  was  taken.  And  in  that  case  a  decree  against 
heirs  requiring  each  to  pay  pro  rata  is  proper. '^^  The  liability 
of  heirs  for  a  debt  of  their  ancestor,  both  in  law  and  in  equity, 
is  to  the  extent  of  the  full  amount  which  came  to  them  by  de- 

70 — Klicka    v.    Klicka,    105    111.  tis  Annotated  Statutes  of  Illinois, 

App.  372;  People  v.  Admire,  39  III.  with  Jones  &  Addington's  Supple- 

251.  ments  thereto.  Vol.  1,  pp.  242,  243, 

71 — Weir  v.  People,  78  111.  192.  and  cases  cited;   Vol.  4,  p.  44,  and 

72— R.  S.  1845,  p.  563,  sec.  130.  cases  cited;    Kurd's  R.   S.   of  111., 

Section  118,  chapter  3,  "Adminis-  1905,  pp.  124,  125. 

tration  of  Estates."    Starr  &  Cur-  73— Outright  v.  Stanford,  81  III. 

240. 


510  THE  LAW  OF  ESTATES. 

scent.'^*  But  it  is  held,  where  an  executor  without  an  order  of 
court,  paid  a  claimant  more  than  he  was  entitled  to  receive, 
no  action  on  behalf  of  the  estate  can  be  maintained  to  recover 
the  excess  so  paid."^  The  legatee  or  distributee  can  only  be  re- 
quired to  refund  a  due  proportion  of  any  debt  which  may  af- 
terwards appear  against  the  estate  when  payment  is  demanded 
before  the  period  for  exhibiting  claims  has  expired. ''^^  But  if  a 
judgment  be  held  by  an  estate  against  an  heir,  his  distributive 
share  may  be  by  proper  order  of  the  court  applied  upon  such 
judgment,'^'  An  executor  voluntarily  paid  over  to  one  of  the 
legatees  named  in  the  will,  an  amount  supposed  to  be  equal,  or 
nearly  so,  to  the  interest  of  the  legatee.  It  was  subsequently, 
and  after  a  lapse  of  ten  years,  alleged  by  the  executor  that  the 
legatee  had  been  overpaid,  and  upon  a  request  and  a  refusal 
to  refund,  the  executor  commenced  a  suit  to  recover  back  the 
alleged  excess:  Held,  that  if  the  executor  was  entitled  to  re- 
cover at  all,  he  was,  notwithstanding,  barred  by  the  statute  of 
limitations,  as  the  statute  begins  to  run  when  a  cause  of  action 
accrues.  In  a  case  where  some  act  is  to  be  done,  or  condition 
precedent  to  be  performed  by  a  party  to  entitle  him  to  his  right 
to  sue,  and  no  definite  time  is  fixed  at  which  the  act  is  to  be 
done  or  condition  performed,  he  must  exercise  reasonable  dili- 
gence to  do  the  one  or  perform  the  other,  or  he  will  be  barred 
by  the  statute  of  limitations ;  otherwise  it  would  be  in  his  power 
to  defeat  the  law  by  his  own  negligence  and  wrong. ''^  In  bills 
for  accounting  equity  applies  the  same  period  of  limitation  pre- 

74— Ryan  v.  Jones'  Exr's,  15  111.  son,  3  Gilm.    (111.)    597.     See  sec- 

1;  Vanmeter  Heirs  V.  Love's  Heirs,  tions  1,  2,  3,  chapter  S3,   entitled 

33  111.  260.  "Limitations,"      Starr     &     Curtis 

75 — Beaird  v.  "Wolf,  23  111.  App.  Annotated  Statutes  of  Illinois,  with 

436.  Jones  &  Addington's  Supplements 

76— Graffenreid    v.    Kundert,    34  thereto.  Vol.   2,  pp.  2599   to   2604, 

111.  App.  483.  and  cases  cited  under  sections  of 

77— Egan  v.  Clark,  87  111.  App.  statute;  Vol.  4,  pp.  801  to  805,  and 

248.  cases   cited;    Vol.   5,   pp.   366,  367, 

78 — Shelburne,    Exr.,    v.    Robin-  and  cases  cited;    Kurd's  R.   S.  of 

111.,  1905,  p.  1331. 


SETTLEMENT   OF   EXECUTORS,    ETC.  511 

scribed  by  the  statute  for  barring  actions  of  account  as  courts 
of  common  lawJ^ 

602.  Suits  between  associate  representatives.  ' '  Where  there 
are  two  or  more  executors  or  administratoi-s  of  an  estate,  and 
any  one  of  them  takes  all  or  a  greater  part  of  such  estate  and 
refuses  to  pay  the  debts  of  the  decedent,  or  refuses  to  account 
with  the  other  executor  or  administrator,  in  such  case  the  ex- 
ecutor or  administrator  so  aggrieved  may  have  his  action  of 
account  or  suit  in  equity  against  such  delinquent  executor  or 
administrator,  and  recover  such  proportionate  share  of  said 
estate  as  shall  belong  to  him;  and  every  executor,  being  a  resid- 
uary legatee,  may  have  an  action  of  account  or  suit  in  equity 
against  his  co-executor  or  co-executors,  and  recover  his  part  of 
the  estate  in  his  or  their  hands.  Any  other  legatee  may  have 
the  like  remedy  against  the  executors:  Provided,  that  before 
any  action  shall  be  commenced  for  legacies  as  aforesaid,  the 
court  shall  order  them  to  be  paid. '  '^^  This  section  of  the  statute 
was  formerly  131,  section  of  the  statute  of  Wills,  re-enacted  and 
placed  under  Administration  Act  without  material  change.^^ 
The  case  cited  was  a  bill  in  chancery  and  the  section  in  question 
was  construed.  On  page  430:  "In  the  preceding  part  of  the 
section,  two  modes  are  prescribed  for  enforcing  the  payment 
of  the  legacies,  one  by  action  of  account,  and  the  other  by  suit 
in  equity;  and  the  proviso  declares  that  before  any  action  shall 
be  commenced  for  legacies  as  aforesaid,  an  order  shall  be  made 
by  the  probate  court,  etc.  This  clearly  applies  only  to  cases 
where  the  action  of  account  shall  be  commenced,  for  the  term 
action  is  never  properly  applied  to  a  suit  in  equity,  nor  is  suit 
a  proper  designation  for  an  action  of  account.     The  proviso, 

79 — Richardson  v.  Gregory,   126  Section   119,    chapter    3,   Adminis- 

111.  166;   Sherman  v.  Sherman,  36  tration  of  Estates."    Starr  &  Curtis 

111.  App.  482;  Higgins  v.  Spring,  36  Annotated  Statutes  of  Illinois,  Vol. 

111.  App.  310;   Holmes  v.  Burwell,  1,  p.  343,  and  cases  cited;   Kurd's 

30  111.  App.  445.  R.  S.  of  111.,  1905,  p.  125. 

80— R.  S.  1845,  p.  563,  sec,  131.        81— Mahar   v.    O'Hara,    4    Gilm. 

(111.)  425. 


512  THE  LAW  OF  ESTATES. 

therefore,  does  not  apply  to  a  suit  in  equity  to  enforce  the  pay- 
ment of  a  legacy  (Page  429)  :  The  jurisdiction  of  courts  of 
equity  in  cases  of  legacies,  is  expressly  confirmed  by  this  statute ; 
its  general  powers  and  jurisdiction  in  cases  of  legacies  has  been 
firmly  established.^ ^  i^  equity,  executors  and  administrators 
are  trustees,  and  so  also  is  a  devisee  who  takes  a  devise,  charge- 
able with  legacies  or  debts.  No  better  illustration  could  be  de- 
sired, than  the  case  before  us.  Here  the  testator  devised  an  es- 
tate to  his  son,  whom  also  he  made  his  executor,  and  in  considera- 
tion of  the  devise,  he  imposed  upon  his  son  the  burthen  of  sup- 
porting the  widow  of  the  testator  in  his  family,  so  long  as  they 
could  agree,  or  she  should  choose  to  reside  there,  and  when  she 
should  choose  to  live  by  herself,  he  should  build  for  her  a  house, 
and  furnish  her  annually  with  a  specified  quantity  of  corn, 
wheat  and  pork.  Now,  in  equity  he  is  considered  a  trustee  for 
the  purpose  of  executing  these  provisions  in  favor  of  the  widow, 
and  by  accepting  the  estate  he  assumed  the  trust,  and  the  estate 
thus  devised  is  not  only  chargeable  in  equity  with  the  trust, 
but  by  accepting  the  devise  he  became  personally  responsible 
for  the  payment  of  the  legacy,  according  to  the  provisions  of 
the  will.  "^^  The  demand  required  to  be  made  by  this  statute 
is  not  necessary  or  required  where  the  a/iministrator  dies  be- 
fore demand  is  made.  The  statute  has  reference  to  cases  where 
the  administrator  is  in  being,  and  upon  whom  a  demand  can 
be  made.  The  demand  required  to  be  made  is  a  matter  of  form 
intended  to  protect  parties  from  needless  costs;  it  was  not  de- 
signed to  be  used  by  the  securities  on  an  administrator's  bond 
as  a  shield  from  liability,  after  a  demand  had  become  impos- 
sible.*^ Under  this  section  of  the  statute,  authority  of  an  ad- 
ministrator de  bonis  non  to  call  upon  a  former  administrator, 
whose  letters  have  been  revoked,  to  account  fully  for  his  ad- 
ministration of  the  estate,  is  clear  and  unmistakable.^-'^       But 

82—1  story's  Eq.  Jiir..  chapt.  10.         85— Duffin  v.  Abbott,  48  111.  17; 

83— Mahar    v.    O'Hara,    4    Gilm.  Ruffin    v.    Farmer,     72     111.     615; 

(111.),  p.  429.  Dodge  v.  Cole,  97  111.  351;  Golden 

84— People  v.  Admire,  39  111.  251.  v.  Bressler,  105  111.  419-432. 


SETTLEMENT    OP   EXECUTORS,    ETC.  513 

the  courts  make  a  distinction  between  an  administrator  de  bonis 
non  appointed  on  the  death  of  an  administrator,  and  one  ap- 
pointed on  the  revocation  of  letters.  In  the  one  case,  that  of 
death,  the  representatives  of  the  deceased  administrator,  can  be 
called  to  account  only  by  the  heirs  and  distributees.  In  the 
other  case,  the  statute  expressly  authorizes  the  proceedings.^^ 
It  is  not  within  the  province  of  one  of  several  executors  to  call 
his  co-executors  to  account  for  their  action  in  a  court  of  equity. 
If  either  of  the  executors  does  wrong  he,  alone,  is  responsible, 
the  other  cannot  be  injured  thereby .^^  But  the  act  of  one  of 
several  executors  or  administrators,  while  he  remains  in  office, 
is  the  act  of  all.^^ 

86— Duffin  V.  Abbott,  48  111.  17;  340;  Huster  v.  Johnson,  84  111.  61; 

Marsh  v.  People,  15  111.  286;  Ruffin  People  v.  Atkins,  7  111.  App.  105. 

V,  Farmer,  72  111.  615;   Hanifin  v.  88— Dwight    v.    Newell,    15    111. 

Needles,  108  111.  407.  333;  Marsh  v.  People,  15  111.  286. 

87— Grain    v.    Kennedy,    85    111. 


33 


CHAPTER  XXXI 


MORTGAGING  AND  LEASING  REAL  ESTATE 


Sec. 

603.  Mortgaging    and    leasing    of 

real     estate     by     executors, 

when  made, — term. 


Sec. 

C04.  Foreclosure     of     such     mort- 
gage. 
605.  No  strict  foreclosure. 


Sec.  603.  Mortgaging  and  leasing  real  estate  by  executors — 
when  made — term.  ''Real  estate  may  be  mortgaged  in  fee  or 
for  a  term  of  years,  or  leased  by  executors:  Provided,  thai  the 
term  of  such  lease,  or  the  time  of  the  maturity  of  the  indebted- 
ness secured  by  such  mortgage,  shall  not  be  extended  beyond 
the  time  when  the  heirs  entitled  to  such  estate  shall  attain  the 
age  of  twenty-one  years,  if  a  male,  or  eighteen  years,  if  a  fe- 
male: And,  provided,  also,  that  before  any  mortgage  or  lease 
shall  be  made,  the  executors  shall  petition  the  county  court  for 
an  order  authorizing  such  mortgage  or  lease  to  be  made,  and 
which  the  court  may  grant,  if  the  interests  of  the  estate  may 
require  it:  Provided,  further,  that  the  executor  making  applica- 
tion as  aforesaid,  upon  obtaining  such  order,  shall  enter  into 
bond,  with  good  security,  faithfully  to  apply  the  moneys  to  be 
raised  upon  such  mortgage  or  lease,  to  the  payment  of  the  debts 
of  the  testator;  and  all  money  so  raised  shall  be  assets  in  the 
hands  of  such  executor  for  the  payment  of  debts,  and  shall  be 
subject  to  the  order  of  the  court  in  the  same  manner  as  other 
assets."!  Under  this  statute  an  administrator  has  no  power  to 
give  a  mortgage,  and  if  he  does,  such  act  is  void  even  if  the 
heirs  or  the  estate  have  the  benefit  of  the  money  raised  by  such 

•  1 — R.    S.   1845,   p.    564,   sections  tion  of  Estates."     Starr  &  Curtis 

134,   135,   rewritten   and  amended  Annotated     Statutes     of     Illinois, 

by  law  of  1869,  p.  372,  sec.  1.     Sec-  Vol.    1,   p.   344,    and   cases    cited; 

tion   120,   chapter  3,   "Administra-  Kurd's  R.  S.  of  111.,  1905,  p.  125. 

514 


MORTGAGING   AND    LEASING    REAL   ESTATE.  515 

mortgage.2  Where  a  foreclosure  sale  under  a  trust  deed  con- 
taining a  power  of  sale  in  the  trustee  was  given  by  adminis- 
trators it  was  held:  The  administrators  of  deceased,  had  no 
power  to  mortgage  the  land ;  and  therefore  no  title  passed  under 
the  sale  made  by  the  trustee  of  such  mortgage.^  But  where  the 
will  expresses  or  tends  to  show,  it  was  the  intention  and  expec- 
tation of  the  testator,  that  his  executors  would  keep  his  estate 
intact,  so  far  as  they  were  able;  and  generally  manage  it  in 
such  a  way  to  make  it  as  productive  as  possible,  and  to  this 
end,  the  executors  were  given  the  power  to  sell  and  convey  such 
parts  of  the  estate,  as  they,  in  their  discretion,  deemed  neces- 
sary to  accomplish  the  purpose  in  question,  it  was  held:  This 
grant  of  power  under  the  circumstances,  included  the  power  to 
mortgage,  when  the  mode  of  raising  money  to  answer  the  object 
of  the  will,  would,  in  the  judgment  of  the  executors,  be  to  the 
best  interest  of  the  estate.'*  The  language  of  a  certain  will  was : 
"I  desire  that  my  executor  lease  the  farm  for  the  support  of 
the  family  during  minority.*'  The  will  contained  no  words  "of 
grant,  and  there  was  nothing  to  show  an  intention  to  confer  any 
estate  upon  the  executors  who  made  the  lease  under  which  an 
action  for  waste  against  the  tenant  was  brought.     Held:     The 

2 — Mei  ritt    v.    Simpson,    41    111.  but  had  no  power  to  encumber  the 

391;    Wetherell  v.  Harris,  67  Ind.  real  estate  as  was  done  by  mort- 

452;  Smith  v.  Hutchinson,  108  111.  gage  or  deed  of  trust  for  money 

668.  borrowed.    And  it  was  held,  under 

3 — Smith  V.  Hutchinson,  108  111.  the  facts  shown  where  an  adminis- 

668.  trator  succeeded  the  executor,  that 

4 — Starr  v.  Moulton,  97  111.  535;  he  had  no  power,  under  the  stat- 

Butler  V.  Heustes,  68  111.  597;  Pool  ute,  to  give  a  mortgage  upon  the 

V.  Potter,  63  111.  537.  real  estate  of  his  intestate,  and  if 

In  Smith  v.  Hutchinson,  108  111.  he  gives  one,  as  was  done  in  that 

662,  the  proceeding  was  under  the  case,   it  will  not  bind  the  estate, 

"Burnt  Records  Act"  to  establish  and   a  sale  under   such   mortgage 

title;  and  in  that  proceeding  it  ap-  will  pass  no  title,  and  if  the  ad- 

peared    the     executor    under    the  ministrator  is  a  part  owner  in  the 

will    in    question    had    power    to  lands  he  so  mortgages,  he  will  be 

lease  or  sell  certain  lands  for  the  estopped  to  dispute  the  validity  of 

purpose   of  making   a   division  of  the  mortgage,  so  far  as   concerns 

the  proceeds  among  the  devisees,  his  own  interest  therein. 


516  THE  LAW  OF  ESTATES. 

executors  had  no  estate  in  the  premises,  for  in  executing  this 
lease  the  executors  exhausted  their  power  to  lease;  and  the 
lease  terminated  at  the  same  time  the  youngest  heir  would  at- 
tain his  majority.  The  action  of  trespass  could  only  be  main- 
tained by  the  heirs  who  held  the  fee  and  were  entitled  to  the 
reversion,  subject  to  be  defeated  by  an  executor's  sale.  But  as 
the  defendant  had  covenanted  in  the  lease  not  to  commit  the 
waste  complained  of,  he  was  liable  to  be  sued  on  this  covenant, 
and  the  executors  had  this  remedy  for  such  injury.^  So  where 
a  lease  was  executed  by  a  guardian  who  was  sued  in  an  action 
of  covenant  based  upon  the  words  of  the  instrument,  "devised 
and  leased":  It  was  held,  that  in  such  a  lease  there  are  no 
implied  covenants;  there  being  no  express  covenants  contained 
in  the  lease,  which  simply  purports  to  be,  and  is,  but  the  mere 
execution  of  a  power  conferred  by  statute,  and  where  no  implied 
covenants  arise  upon  which  such  officer  or  agent  can  be  held 
liable.^  The  statute  of  1845  did  not  authorize  the  mortgaging 
of  the  fee  but  the  statute  of  1869  did.  Both  the  statutes  of 
1845  and  1869,  applied  to  guardians;  but,  in  1872  Chapter  64 
entitled  "Guardian  and  Ward"  was  passed,  which  separated 
the  executor,  administrator  and  guardian  and  as  to  each  the 
proceeding  to  mortgage  are  distinctly  separate.'^  The  power 
to  lease,  sell  or  mortgage  real  estate  of  a  decedent  is  strictly 
a  statutory  proceeding,  and  the  executor  or  guardian  exercising 
such  power  must  proceed  and  act  strictly  under  the  statute. 
But  when  power  is  expressly  conferred  by  will,  or  from  the 
language  of  the  will  it  may  be  implied,  the  executor  may  act 
without  the  statute.^  By  analogy,  it  would  seem;  the  executor 
to  be  right  and  safe  in  proceedings  to  mortgage  or  lease,  should 
be  required  to  make  parties  to  such  proceedings,  the  same  per- 
sons who  are  necessary  parties  where  real  estate  is  sold  to  pay 

5 — Page  V.  Davidson,  22  111.  117;  "Guardian    and   Ward."     Starr   & 

Pool  V.  Potter,  63  III.  537.  Curtis  Annotated  Statutes  of  Illi- 

G— Webster  v.  Conley,  46  111.  13.  nois.  Vol.  2,  pp.  2086,  2087;  Kurd's 

7— See  R.  S.  1845,  p.  564;   Laws  R.  S.  of  111.,  1905,  p.  1132. 

of  1869,  p.  372;    see  also  sections  S— Fell  v.  Young,  63  111.  106. 
23,    24,   25    and    26,    chapter    64, 


MORTGAGING   AND    LEASING   REAL   ESTATE.  517 

debts ;  for  the  proceeds  arising  from  such  mortgage  are  counted 
as  assets  and  the  executor  is  required  to  apply  the  same  in  the 
payment  of  debts  of  the  testator  and  give  bond  with  security 
that  he  will  so  apply  such  proceeds.  Another  analogj^  lies  in 
the  established  rules,  that  under  a  sale  of  real  estate  to  pay  debts 
caveat  emptor  applies;  and  the  mortgage  given  by  the  guardian 
or  executor  carries  no  implied  covenants,  and  in  the  absence  of 
express  covenants,  the  guardian  or  executor  is  not  liable.^ 

604.  Foreclosure.  "Foreclosures  of  such  mortgages  shall 
only  be  made  by  petition  to  the  county  court  of  the  county  in 
which  the  premises,  or  a  major  part  thereof,  are  situated;  and 
any  sale  made  by  virtue  of  any  order  or  decree  of  foreclosure, 
may,  at  any  time  before  confirmation,  be  set  aside  by  the  court 
for  inadequacy  of  price  or  other  good  cause,  and  shall  not  be 
binding  upon  the  executor  until  confirmed  by  the  court.  "i<* 

605.  No  strict  foreclosure.  ' '  No  decree  of  strict  foreclosure 
shall  be  made  upon  any  such  mortgage,  but  redemption  shall 
be  allowed  as  is  provided  by  law  in  cases  of  sales  under  execu- 
tions issued  upon  common  law  judgments. ' '  Under  the  chapters 
of  this  work,  relating  to  Guardian  and  Ward,  where  a  similar 
statute  is  in  force,  and  where  the  foreclosure  of  mortgages  given 
by  a  guardian  have  been  made,  it  is  held:  The  provisions  of 
the  statute  were  not  intended  to,  and  could  not  exclude  the  juris- 
diction of  the  United  States  courts  in  proceedings  brought  in 
such  courts  to  foreclose  a  mortgage  given  by  a  guardian,  where  it 
appears  the  requisite  citizenship  and  amount  involved  are  suf- 
ficient to  give  such  courts  jurisdiction." 

9— Webster  v.  Conley,  46  111,  13.  11— Section  122,  chapter  3,  "Ad- 

10 — Laws  of  1869,  p.  372,  sec.  23.  ministration    of    Estates."      Starr 

Section  121,  chapter  3,  "Adminis-  &  Curtis  Annotated  Statute  of  lUi- 

tration  of  Estates."  Starr  &  Curtis  nois.  Vol.  1,  p.  344;    Kurd's  R.  S. 

Annotated  Statutes  of  Illinois,  Vol.  of  111.,  1905,  p.  125;  Davis  v.  James 

1,  p.  344;  Kurd's  R.  S.  of  111.,  1905,  10,  Biss.  51;   United   States  Mort- 

p.  125.  gage  Co.  v.  Sperry,  138  U.  S.  313. 


CHAPTER   XXXII 

ACTIONS  WHICH  DO  AND  DO  NOT  SURVIVE 


Sec. 

606.  Actions  which  survive. 

607.  What   actions  survive. 

608.  The  legal  construction  of  con- 

tracts determines  whether 
or  not  a  right  of  action 
survives. 


Sec. 

609.  Implied  legal  duties  imposed 

upon  heirs,  devisees  or 
legal  representatives  of  de- 
ceased in  actions  which 
survive. 

610.  Real  estate  contracts  enforced 

after  death  or  insanity. 


Sec,  606.  Actions  which  survive.  In  most  of  the  States,  the 
statutes  expressly  provide  for  a  case  where  the  vendor  dies  be- 
fore completing  the  contract,  and  leaves  heirs  or  devisees  adult 
or  infant;  the  legislation  is  of  different  types,  in  some  States  it 
deals  entirely  with  the  suit  in  equity  for  a  specific  performance ; 
in  others  it  provides  for  a  mere  summary  special  proceeding,  by 
which  the  contract  may  be  enforced  without  a  suit,  as  a  step 
in  the  settlement  of  the  deceased  vendor's  estate.  In  relation  to 
contracts  that  are  joint  and  several  the  executor  or  administra- 
tor is  suable  in  a  separate  action,  but  cannot  be  joined  with 
the  survivor;  for  the  reason,  that  one  is  to  be  charged  in  his 
own  right,  the  other  in  the  right  of  his  testator  or  intestate. 
The  judgment  cannot  be  joint,  because  one  is  liable  personally, 
the  other  in  his  representative  capacity,  to  the  extent  of  assets 
in  his  hands.^  Under  the  principles  of  the  common  law,  where 
one  joint  obligor  dies,  all  rights  of  action  at  law,  against  his 
estate,  or  his  administrators,  is  gone;  and  it  was  only  in  equity 
that  relief  and  satisfaction  could  be  had  out  of  his  estate.  Even 
then,  relief  would  be  refused,  unless  the  intestate  participated 
in  the  benefits  of  the  consideration,  or  could  be  treated  as  a  sev- 

1— Balance  v.  Samuel,  3  Scam.   (111.)    383. 

518 


ACTIONS    WHICH    DO    AND    DO    NOT    SURVIVE. 


519 


eral  obligor.^  As  to  joint  rights  and  obligations,  and  what 
deemed  joint  and  several,  we  refer  to  statute  cited.^  We  also 
call  attention  in  this  connection  to  Chapter  28  consisting  of  one 
section,  as  follows:  "That  the  common  law  of  England,  so 
far  as  the  same  is  applicable  and  of  a  general  nature,  and  all 
statutes  or  acts  of  the  British  parliament  made  in  aid  of,  and 
to  supply  the  defects  of  the  common  law,  prior  to  the  fourth 
year  of  James  the  First,  excepting  the  second  section  of  the 
sixth  chapter  of  43d  Elizabeth,  the  eighth  chapter  of  13th  Eliz- 
abeth, and  ninth  chapter  of  37th  Henry  Eighth,  and  which  are 
of  a  general  nature  and  not  local  to  that  kingdom,  shall  be  the 
rule  of  decision,  and  shall  be  considered  as  of  full  force  until 
repealed  by  legislative  authority."^  Thus  in  Illinois  the  com- 
mon law  is  in  force,  so  far  as  it  is  applicable  to  our  society  and 
institutions,  unless  modified  by  statutory  laws  of  this  State.^  In 
the  absence  of  evidence  to  the  contrary,  it  will  be  presumed  in 


2— Powell  Adm'r  v.  Kettelle,  1 
Gil.    (111.)    491. 

3 — See  sections  1,  2,  3,  chapter 
76,  entitled  "Joint  Rights  and  Obli- 
gations" (1)  Also  section  10,  chap- 
ter 122,  entitled  "Schools."  Hurfl's 
R.  S.  of  111.,  pp.  1249,  1250;  (2),  p. 
1788;  Starr  &  Curtis  Annotated 
Statutes  of  Illinois,  Vol.  2,  pp. 
2319,   2321,   and   cases   cited;    Vol. 

3,  p.  3645. 

4 — Starr  &  Curtis  Annotated 
Statutes  of  Illinois,  with  Jones  & 
Addington's  Supplements  thereto. 
Vol.  1,  p.  901,  and  cases  cited;  Vol. 

4,  246,  and  cases  cited;  Kurd's  R. 

5,  of  111.,  1905,  p.  469. 

5— Boyer  v.  Sweet,  3  Scam.  (111.) 
120;  Lavalle  v.  Strobel.  89  111. 
370;  Hanchett  v.  Rice,  22  111.  App. 
442;  Trust  Co.  v.  Palmer,  171  111. 
385;  Kochersperger  v.  Drake,  167 
111.  125;  Schlee  v.  Guckenheimer, 
179  111.  596.  In  this  case  it  is 
said:    The   rule   that    courts    will 


not  take  notice  of  the  laws  of  a 
sister  state  in  the  absence  of  an 
averment  and  proof  does  not  pre- 
vail as  to  the  common  law,  which 
is  presumed  to  exist  in  each  State 
of  the  Union  in  the  absence  of  con- 
trary proof.  And  so  it  is  held  in 
that  case,  that  a  contract  made  in 
a  foreign  State  which  is  valid  at 
common  law  will  be  presumed  by 
the  courts  of  Illinois  to  be  valid  in 
the  State  where  made,  in  the  ab- 
sence of  contrary  proof,  and  will 
be  enforced  by  such  courts  unless 
contrary  to  our  laws  or  public 
policy.  So  a  contract  of  purchase 
giving  a  privilege  of  purchasing  a 
certain  additional  quantity  of  bar- 
ley, at  the  same  price  if  taken  be- 
fore a  certain  day  in  the  future  is 
not  void  as  an  option  contract,  pro- 
hibited by  the  statutes  of  Illinois. 
Distinction  made  between  case, 
and  Schneider  v.  Turner,  130  111. 
28,  and  Pope  v.  Hanke,  155  111.  617. 


520  THE  LAW  OF  ESTATES. 

the  courts  of  this  State  that  the  common  law  prevails  in  other 
States  formed  from  territoiy  which  once  belonged  to  the  colo- 
nies of  England.^  In  discussing  the  common  law  rights  and  lia- 
bilities in  case  of  contracts  where  one  party  to  such  dies,  it  is 
said:  "Text  writers  noting  the  decisions  on  this  subject  state 
the  law  to  be,  that  when  the  contract  with  the  deceased  is  of  an 
executory  nature,  and  the  personal  representative  can  fairly  and 
sufficiently  execute  all  that  deceased  could  have  done,  he  may 
do  so,  and  enforce  the  contract. '  '^  Exceptional  cases  arise,  when 
the  contract  is  of  a  personal  character,  or  requires,  in  its  exe- 
cution, the  exercise  of  peculiar  skill  or  taste.  But  when  the 
administrator  undertakes  to  perform  the  contract  of  his  intes- 
tate it  is  upon  his  personal  responsibility,  and  if  losses  are  sus- 
tained, he  must  bear  them,  and  if  profits  are  realized,  they  be- 
come assets  in  his  hands  for  the  benefit  of  the  estate.  Such  were 
the  liabilities  the  common  law  imposed  upon  the  administrator 
assuming  to  execute  the  contract  of  the  decedent.^  "All  con- 
tracts made  by  the  decedent  may  be  performed  by  the  executor 
or  administrator,  when  so  directed  hy  the  County  Court.' '^ 
But  it  is  apprehended  this  statute  does  not  change  the  common 
law  on  this  subject,  except  in  one  particular.  Without  this 
enabling  statute  the  executor  or  administrator  could  not  bind 
the  estate,  nor  relieve  himself  from  personal  responsibilitj',  but 
under  its  provisions,  when  directed  by  the  county  court  to  per- 
form the  contract,  the  estate  may  be  charged  with  all  losses  that 
may  be  incurred,  as  well  as  receive  all  benefits  of  any  profits 
that  may  be  realized,  and  in  that  way  the  executor  or  adminis- 
trator may  be  relieved  from  all  personal  responsibility.^^     "It 

6 — Schlee  v.  Guckenheimer,  179  8 — Rapp  v.  Phoenix  Ins.  Co.,  113 

111.  596.  111.  398. 

7— Smith  V.  W.  C.  M.  &  Mfg.  9— Section  127,  chapter  3,  "Ad- 
Co.,  83  111.  500;  1.  Parsons  on  ministration  of  Estates."  See  stat- 
Contracts,  6th  ed.  p.  131,  and  see  ute  at  large,  ante  567. 
the  following  common  law  author-  10 — Smith  v.  W.  C.  M.  &  Mfg. 
ities  sustaining  the  text  writer:  Co.,  83  111.  500,  501.  In  this  case 
Saboni  V.  Kirkman,  1  M.  &  W.  418;  the  rule  is  laid  down,  that  ff  a 
Yv'entworth  v.  Cook,  10  A.  &  E.  42.  contract  with  a  deceased  party  is 


ACTIONS    WHICH    DO    AND    DO    NOT    SURVIVE.  521 

is  a  misapprehension  of  the  law  to  suppose  the  death  of  one  of 
the  contracting  parties  put  an  end  to  the  contract.  For  any 
breach  after,  as  well  as  before,  the  death  of  such  party,  his 
estate  would  be  liable  to  respond  in  damages.  It  is  conceded,  the 
county  court  could  have  directed  the  administratrix  to  carry 
out  the  contract  made  with  decedent.  The  admission  implies 
the  continued  existence  of  a  valid  contract,  and  for  any  breach 
thereafter,  the  administratrix  might  maintain  an  action.  But, 
in  our  view  of  the  law,  the  administratrix  had  that  right  inde- 
pendently of  the  statute,  taking  upon  herself  all  risk  incident 
to  the  further  execution  of  the  contract.  "^^  "We  quote  exten- 
sively from  this  leading  case  because  it  has  been  followed  con- 
stantly by  the  Illinois  courts. 

607.  What  actions  survive.  It  has  been  seen  the  death  of 
one  of  the  contracting  parties  does  not  put  an  end  to  the  con- 
tract.^ 2  So  it  often  happens  that  the  representatives  of  an 
estate,  or  the  heirs  or  devisees  of  a  deceased  person,  may  in 
some  manner  be  compelled  to  carry  out  or  litigate  under  a  con- 
tract of  the  deceased.  An  ante  nuptial  contract  may  be  the 
basis  of  a  claim  against  an  estate  or  those  interested,  such  as 
heirs  or  devisees.^^  Also  actions  and  possible  liabilities  may 
arise  out  of  commercial  contracts.^*  Contracts  covering  inven- 
tions may  be  specifically  enforced.^ ^  "In  addition  to  the  ac- 
tions which  survive  by  the  common  law,  the  following  also 
survive:  Actions  of  replevin,  actions  to  recover  damages  for 
an  injury  to  the  person  (except  slander  and  libel),  actions  to 
recover  damages  for  an  injury  to  real  or  personal  property,  and 
for  the  detention  or  conversion  of  personal  property,  and  ac- 

of   an   executory   nature,   and   his  12 — Reeves  v.  Stipp,  91  111.  610. 

personal   representative  can  fairly  13 — Dunlap    v.    Lamb,    182    111. 

and  suflBciently  execute  all  that  the  325 ;  Murdock  v.  Murdock,  219  111. 

deceased  could  have  done,  he  may  23. 

do   so,   and    enforce   the    contract,  14 — Mobile    Fruit   Co.   v.   J.    H. 

the   exceptions   to   the  rule   being  Judy  &  Son,  91  111.  App.  91. 

cited  in  the  text.  15 — Bates   v.    Machine   Co.,    192 

11— Smith  V.  W.  C.  M.  &  Mfg.  111.  138;   Supply  Co.  v.  Davis  Mfg. 

Co.,  S3  111.  500,  501.  Co.,  77  Fed.  Rep.  883. 


522 


THE  LAW  OF  ESTATES. 


tions  against  officers  for  malfeasance  or  nonfeasance,  of  them- 
selves or  their  deputies,  and  all  actions  of  fraud  or  deceit.  "^^ 
Where  the  injury  does  not  cause  death,  the  statuton^  action  sur- 
vives the  defendant's  death  and  is  good  against  his  administra- 
tor.i'^  A  and  B  agents  of  an  insurance  company  with  C  as 
surety  gave  a  certain  indemnity  bond  guaranteeing  the  honesty 
and  fidelity  of  the  bonden  for  certain  funds.  C  the  surety  died, 
and  after  his  death  a  clerk  in  the  service  of  the  bonden  misap- 
propriated the  funds  in  the  hands  of  the  bonden.  In  such  ease 
under  the  conditions  of  the  bond  the  estate  of  C  the  surety  was 
held  liable.i^ 

608.  The  legal  construction  of  contracts  determine  whether 
or  not  a  right  of  action  survives.  Thus  where  notes  were  given 
by  A  to  B  to  promote  the  object  of  the  latter  in  purchasing  a 
church  bell ;  A  having  died  before  the  church  bell  was  purchased, 
B  the  holder  of  the  notes  spent  no  money  nor  incurred  no  lia- 
bilities in  connection  with  the  project  which  caused  him  loss  or 


10 — Section  123,  chapter  3,  "Ad- 
ministration of  Estates."  Starr  & 
Curtis  Annotated  Statutes  of  Illi- 
nois, Vol.  1,  p.  344,  and  cases  cited; 
Kurd's  R.  S.  of  111.,  1905,  p.  125. 
See  also  sections  1  and  2,  chapter 
70,  entitled  "Injuries"  Starr  & 
Curtis  Annotated  Statutes  of  Illi- 
nois, with  Jones  &  Addington's 
Supplements  thereto.  Vol.  2,  pp. 
2155,  2156,  and  cases  cited;  Vol. 
4,  general  notes,  p.  684,  690,  and 
cases  cited;  Vol.  5,  p.  312,  and 
cases  cited;  Kurd's  R.  S.  of  111., 
1905,  pp.  1152,  1153,  Wehr  v. 
Brooks,  21  111.  App.  115  C.  &  E.  I. 
R.  R.  Co.  V.  Connor,  19  111.  App. 
593. 

17— -Wehr  v.  Brooks,  21  111.  App. 
115,  and  cases  cited  in  the  opinion. 

18 — In  re  Estate  of  Rapp  v. 
Phoenix  Ins.  Co.,  113  111.  390.  And 
see  the  following  cases  from  this 
and   other    states   supporting   the 


opinion.  Jordon  v.  Dobbins,  122 
Mass.  168,  goods  sued  for  were  sold 
after  the  guarantor's  death,  and 
not  founded  therefore  upon  any 
present  consideration  passing  to 
the  guarantor.  Keld,  such  a  guar- 
anty is  revocable  by  the  guarantor 
at  any  time  before  it  is  acted  upon, 
death  of  the  guarantor  in  that 
case  operating  to  revoke  the  con- 
tract for  sale  of  goods  after  death. 
See  Brandt  on  Suretyship,  sec. 
113;  Green  v.  Young,  8  Greenlf. 
14;  Moore  v  Wallace,  18  Ala.  458; 
Royal  Ins.  Co,  v.  Davies,  40  Iowa 
469;  Menard  v.  Scudder,  7  La. 
Ann.  385.  And  see  distinction  in 
principle  applied  as  betWSen  cases 
cited  and  Pratt  v.  Trustees,  93  111. 
475;  Jenderine  v  Rose,  36  Mich. 
54;  Karris  v.  Fawcett,  15  Law. 
Rep.  Eq.  C.  311.  See  also  Chitty 
on  Contracts  10th  Am.  ed.  p.  101. 


ACTIONS    WHICH    DO    AND    DO    NOT    SURVIVE.  523 

injury.  The  notes  being  without  consideration  in  such  case, 
could  not  be  enforced  and  a  right  of  action  thereon  it  was  held 
did  not  survive.^'*  Collection  of  notes  cannot  be  enforced  as 
a  promise  to  make  a  gift.^o  Where  the  promise  stands  as  a 
mere  offer,  and  may,  by  necessary  consequence,  be  revoked  at 
any  time  before  it  is  acted  upon  there  is  no  right  of  action.  It 
is  the  expending  of  money,  etc.,  or  incurring  of  legal  liability, 
on  the  faith  of  the  promise,  which  gives  the  right  of  action,  and 
without  this  there  is  no  right  of  action.21  Being  but  an  offer, 
and  susceptible  of  revocation  at  any  time  before  being  acted 
upon,  it  must  follow  that  the  death  of  the  promisor,  before 
the  offer  is  acted  upon,  is  a  revocation  of  the  offer.- 2  An  action 
for  a  statutory  penalty  does  not  survive.^^ 

609.    Implied  legal  duties  imposed  upon  heirs,  devisees  or 
legal  representatives  of  deceased  in  actions  which  survive. 

Under  the  common  law  it  was  provided,  that  in  all  actions  to 
be  conunenced  in  any  court  of  record,  if  plaintiff  or  defendant 
should  happen  to  die  after  interlocutory  and  befoi'e  final  judg- 
ment, the  action  should  not  by  reason  thereof  abate,  if  such  ac- 
tion could  be  originally  prosecuted  or  maintained  by  or  against 
the  executor's  or  the  administrator's  of  the  party  dying;  but 
the  plaintiff'  in  such  case,  or,  in  the  event  of  his  death  after  such 
interlocutory  judgment,  his  executors  or  administrators  might 
have  a  scire  facias  against- the  defendant,  or,  if  he  should  die 
after  such  interlocutory  judgment,  then  his  executors  or  admin- 
istrators, to  show  cause  why  damages  should  not  be  assessed  or 
recovered  in  such  action.^*  The  statute  of  Illinois,  entitled 
"Abatement"  applies  to  law  and  chancery  proceedings.^^     The 

19 — Pratt  Adm.  v.  Trustees  Bap-  22 — Pratt  Adm.  v.  Trustees  Bap- 
tist Society,  93  111.  475.  tist  Society,  93  111.  475. 

20— Pope  V.  Dodson,  58  111.  360;  23— Diversey  v.    Smith,   103   111. 

Blanchard  v.  Williams,  70  111.  652.  378. 

21 — McClure  v.  Williams,  43  111.  24 — Life  Association   of  Ameri- 

356;    Trustees   v.    Garvey,    53    111.  ca  v.  Fassett,  102  111.  315,  326. 

401 ;  Baptist  Educational  Society  v.  25 — Section  1,  chapter  1,  "Abate- 

Carter,  72  111.  247.  ment."     Starr  &  Curtis  Annotated 


524  THE  LAW  OF  ESTATES. 

death  of  a  plaintiff  pending  his  suit  must  be  taken  advantage  of 
by  plea  in  abatement;  otherwise,  the  judgment  in  his  name 
will  be  binding.26  If  the  sole  defendant  die  pending  suit,  and 
his  administrator  is  not  made  a  party  to  the  suit,  and  judgment 
is  taken  the  same  will  be  unauthorized  and  void.  And  if  the 
plaintiff  does  not  within  a  reasonable  time,  take  the  proper  steps 
to  bring  the  legal  representative  of  the  deceased  defendant  into 
court,  the  court  should,  on  its  own  motion,  enter  a  judgment 
or  order  that  the  suit  abate.  The  same  rule  applying  to  the 
death  of  a  defendant,  also  applies  to  the  dissolution  of  a  cor- 
poration.27  ''Where  there  is  but  one  plaintiff,  petitioner  or 
complainant  in  an  action,  proceeding  or  complaint,  in  law  or 
equity,  and  he  shall  die  before  final  judgment  or  decree,  the 
action,  proceeding  or  complaint,  on  that  account  shall  not  abate ; 
and  if  the  cause  of  action  survive  to  the  heir,  devisee,  executor 
or  administrator  of  such  deceased,  such  heir,  devisee,  or  legal 
representative  may,  by  suggesting  such  death  upon  the  record 
be  substituted  as  plaintiff,  petitioner  or  complainant  to  prosecute 
wsuch  suit,  etc."  "Upon  the  death  of  a  sole  defendant,  before 
final  judgment  or  decree,  a  suit  at  law  or  equity  will  not  abate 
on  that  account,  if  it  might  be  originally  prosecuted  against  the 
heir,  devisee,  executor  or  administrator  of  such  defendant.  But 
in  such  case  the  plaintiff,  petitioner  or  complainant  may  sug- 
gest such  death  on  the  record,  and  may,  by  order  of  court,  have 
summons  against  such  person  or  legal  representative,  requiring 
such  to  appear  and  defend  the  action,  proceeding  or  com- 
plaint. "^^    And  where  there  are  several  plaintiffs,  petitioners  or 

Statutes  of  Illinois,  Vol.  1,  p.  247,  28 — Sections  10  and  11,  chapter 

and   cases  cited   under   section   of  1,    "Abatement."     Starr   &   Curtis 

statute;  Kurd's  R.  S.  of  111.,  1905,  Annotated  Statutes  of  Illinois,  Vol. 

p.  97.  1,   pp.    ^4,   255,   and  cases   cited; 

26— Stoetzell  v.  Fullerton,  44  111.  Hurd's  R.  S.  of  111.  1905,  p.  98.  See 

108;   Life  Association  of  America  also  section  8,  chapter  87,  entitled 

V.  Fasset,  102  111.  315,  328.  "Mandamus."   Starr  &  Curtis  An- 

27 — Life  Association  of  America  notated    Statutes   of   Illinois,   Vol. 

V.  Fassett,  102  111.  315.  1,   p.    2682;    Hurd's  R.   S.   of  111., 

1905,  p.  1351. 


ACTIONS  WHICH  DO  AND   DO  NOT  SURVIVE.  525 

complainants  or  defendants  in  an  action,  proceeding  or  com- 
plaint, in  law  or  equity,  the  cause  of  which  survives,  and  any 
of  them  die  before  final  judgment  or  decree,  the  action  at  law 
or  equity  does  not  abate  on  that  account,  but  such  death  may 
be  suggested  on  the  record,  and  the  cause  proceed  at  the  suit 
of  the  surviving  plaintiffs,  petitioners  or  complainants  or  against 
the  surviving  defendant  or  defendants,  as  if  such  persons  had 
been  original  parties  to  the  suit.^^  And  in  ease  of  the  death 
of  all  of  the  plaintiffs  or  defendants,  the  cause  may  be  prose- 
cuted or  defended  by  or  against  the  heir,  devisee,  executor  or 
administrator  to  or  against  whom  the  case  survives. 

610.    Real  estate  contracts  enforced  after  death  or  insanity. 

Chapter  29  containing  eight  sections,  provides  for  the  enforce- 
ment of  a  contract  in  writing,  to  make  a  deed  or  title  to  land 
in  this  State,  for  a  valuable  consideration,  where  any  person 
contracting  shall  have  died,  or  become  lunatic  or  insane,  with- 
out having  executed  and  delivered  a  deed  of  conveyance.  In 
such  case  any  court  having  chancery  jurisdiction,  in  the  county 
where  the  land,  or  some  part  thereof,  may  be  situated,  may  make 
an  order  where  the  statutes  have  been  followed  in  making  par- 
ties to  such  cause  all  those  whose  rights  are  affected;  and  the 
evidence  sustains  the  right  of  petitioners  in  such  proceeding, 
upon  the  payment  of  full  consideration  of  such  contract,  direct- 
ing the  administrator  or  executor  of  a  deceased  person  to  such 
contract,  or  the  conservator  of  a  lunatic  or  insane  person,  to 
execute  and  deliver  a  deed  to  the  party  having  an  equitable  right 
to  the  same,  or  his  heirs,  according  to  the  true  intent  and  mean- 
ing of  such  contract.  Or  the  heirs  at  law  of  either  party  de- 
ceased, or  guardians  and  conservators  of  habitual  drunkards 
may  sue  and  be  sued  under  the  act,  and  have  the  same  rights 
and  remedies  as  the  representatives  or  the  heirs  of  deceased  par- 
ties to  such  contract.  And  all  such  deeds  under  the  provisions 
of  the  act  shall  be  good  and  valid  in  law.     Under  this  statutory 

29 — Sees.   11,   12,   13,   chapter  1,     notated    Statutes   of   Illinois,   Vol. 
"Abatement."   Starr  &  Curtis  An-     1,  pp.  255,  256,  257. 


526 


THE  LAW  OF  ESTATES. 


proceeding  heirs  of  deceased  contracting  parties  are  very  es- 
sential parties  to  such  proceeding;  for  the  order  of  conveyance 
can  only  be  made  where  the  proper  parties  are  before  the  court. 
Minority  of  heirs  is  no  excuse  for  not  asserting  their  rights.^"^ 
The  order  for  conveyance  can  only  be  had  when  the  considera- 
tion of  the  contract  is  fully  paid  and  discharged;  and  where 
consideration  has  not  been  paid,  equity  will  entertain' a  bill  to 
compel  payment  and  conveyance  independently  of  this  statutory 


30 — See  sections  1  to  8,  chapter 
29,  "Contracts."  Starr  &  Curtis 
Annotated  Statutes  of  Illinois, 
with  Jones  &  Addington's  Supple- 
ments thereto,  Vol.  1,  p.  904,  et 
seq.,  Vol.  4,  p.  247  et  seq.,  Vol.  5, 
p.  102,  et.  seq.,  and  cases  cited,  in 
each  volume  under  sections  of 
statute  and  in  general  notes.  See 
also  the  following  cases:  Walker 
V.  Douglas,  70  111.  445,  448;  Suth- 
erland V.  Parkins,  75  111.  339; 
Greenbaum  v.  Austrian,  70  111. 
591;  Forman  v.  Stickney,  77  111. 
575;  Kurtz  v.  Hibner,  55  111.  514; 
Wood  V.  Thornley,  58  111.  468; 
King  V.  Gilson's  Adm'x  32  111. 
354;  Rockwell  v.  Servant,  54  111, 
251;  Ante  nuptial  contract  re- 
ceives liberal  construction,  Dun- 
lop  V.  Lamb,  182  111.  325;  construc- 
tion given  by  parties  to  contract 
will  often  be  followed  by  the  court, 
IkTueller  v.  North  Western  Uni- 
versity, 195  111.  255;  and  to  the 
same  effect,  De  Clercq  v.  Barber 
Asphalt  Paving  Co.,  167  111.  218; 
circumstances  surrounding  parties, 
when  the  contract  is  made  and  ex- 
ecuted, may  aid,  limit  or  enlarge, 
the  ordinary  meaning  of  terms  em- 
ployed, and  the  court  may  adopt 
all  such  in  its  discretion  in  the 
construction  of  a  contract.  Mc- 
Coy V.  Fahrney,  182  111.  65;   what 


considered  sufficient  consideration, 
forbearance.  McMicken  v.  Safford, 
197  111.  546.  Agreement  to  release 
right  of  inheritance,  James  v. 
Hanks,  202  111.  119.  Compromise 
of  a  doubtful  right,  held  to  be  in- 
adequate, Adams  v.  Crown  Coal  & 
Tow  Co.,  198  111.  450;  Reeves  Pul- 
ley Co.  V.  Jewell  Belting  Co.,  102 
111.  App.  380;  Douthart  v.  Congdon, 
197  111.  355.  Equity  will  not  con- 
strue a  contract,  and  assess  dam- 
ages for  a  breach  thereof,  where 
the  suit  is  brought  to  reform  the 
contract,  and  where  there  is  no 
charge  of  fraud  or  mistake,  Clark 
V.  Shirk,  121  Fed.  Rep.  343.  But 
an  agreement  of  an  expectant  heir, 
which  pertains  to  future  contin- 
gent estate  will  be  considered  and 
enforced  in  equity.  Gary  v.  New- 
ton, 201  111.  180;  a  gift  is  a  vol- 
untary, gratuitous  transfer  of 
property  by  one  to  another,  and 
will  not  discharge  an  existing  le- 
gal liability.  Martin  v.  Martin, 
202  111.  388;  Morey  v.  Wiley,  100 
111.  App.  78;  Sheldon  v.  Dunbar, 
200  111.  493.  Intention  must  be  as- 
certained when  a  contract  is  being 
construed,  and  the  court  will  refer 
to  the  instrument  as  a  whole,  and 
not  solely  to  certain  provisions  to 
get  at  the  intention.  Gibbs  v. 
Bank,  198  111.  311. 


ACTIONS  WHICH  DO  AND   DO  NOT  SURVIVE.  527 

proceedmg.31  The  courts  are  frequently  called  upon  to  con- 
strue a  contract  where  such  appears  to  be  void  for  want  of  mu- 
tuality ;  or  where  a  merger  of  an  estate  may  take  place  at  law  or 
equity  under  some  particular  circumstances  growinp-  out  of  the 
contract  in  controversy  between  the  parties  to  a  particular  pro- 
ceeding in  law  or  equity.  In  the  case  of  Fortkam  v.  Deters,^^ 
these  very  questions  are  raised  and  decided.  In  that  case  a  con- 
tract for  the  sale  of  land,  signed  and  sealed  by  the  proposed 
vendors,  recited,  they  have  "sold"  the  land  described  to  the 
proposed  vendee;  it  being  held,  that  such  contract  does  not  lack 
mutuality,  even  though  not  signed  by  the  vendee,  particularly 
where  the  latter  accepts  and  adopts  such  contract,  it  will  be  re- 
garded as  based  upon  sufficient  consideration.  In  the  same  case 
the  doctrine  of  merger  is  raised,  and  it  is  held,  that  a  merger 
takes  place  when  a  legal  and  equitable  estate  coincide  in  the 
same  person ;  and  when  the  merger  takes  place  at  law,  the  equit- 
able estate  is  immediately  merged  and  annihilated.  As  to  the 
rule  in  equity,  when  it  takes  place,  depends  upon  the  intention 
of  the  parties  and  the  particular  circumstances ;  but  equity  will 
not  prevent  a  merger  where  such  prevention  would  give  effect 
to  a  fraud  or  wrong.  And  so  it  is  held  applying  these  rules  in 
that  case,  where  one  purchases  property,  with  notice  of  a  prior 
agreement  by  the  vendors  to  convey  to  another  person,  the  pur- 
chaser wiU  be  regarded  as  the  trustee  of  the  latter,  and  such 
may  be  decreed  in  a  proper  proceeding  in  chancery  to  convey 
the  land  in  the  same  manner  as  his  vendors. 

31— Burger  v.  Potter,  32  111.  66;     Warner  v.  Scott,  63  HI.  368;  Kirk- 
Carpenter  V.  Mitchell,  54  111.  126;     ham  v.  Boston,  67  111.  597. 

32—206  HI.  159. 


CHAPTER   XXXIII 


APPEALS  AND  WRITS  OF  ERROR 


Sec. 
611. 

612. 
613. 


Appeals  from  the  allowance 
or  rejection  of  claims. 

Appeal  to  what  courts, — 
bonds. 

Matters  involved  on  appeal  to 
circuit  court. 


Sec. 

614.  Appeal  by  representative,  his 

bond. 

615.  Appeal  in  proceedings  for  the 

sale  of  land  to  pay  debts. 

616.  Appeals  in  such  case  since  the 

creation  of  the  Probate  and 
Appellate  Court. 


Sec.  611.  Appeals  from  the  allowance  or  rejection  of  claims. 
In  the  administration  of  estates,  we  have  heretofore  cited  the 
statutes  where  appeals  were  provided  for;  but  owing  to  ques- 
tions that  might  arise  under  the  statute  relation  to  "Wills," 
"Administration  of  Estates"  and  possibly  the  "Practice  Act," 
in  connection  with  the  tendency  of  the  legislature  to  extend  and 
increase  the  jurisdiction  of  courts  of  probate,  we  deem  it  neces- 
sary to  cover  the  subject  of  appeals,  certiorari,  and  error.  The 
statute  relating  to  the  "Administration  of  Estates"  provides: 
"That  in  all  cases  of  the  allowance  or  rejection  of  claims  by  the 
county  court,  as  provided  in  this  Act,  either  party  may  take  an 
appeal  from  the  decision  rendered  to  the  circuit  court  of  the 
same  county,  in  the  same  manner  appeals  are  now  taken  from 
justices  of  the  peace  to  the  circuit  courts,  by  appellant  giving 
good  and  sufficient  bond,  with  security,  to  be  approved  by  the 
county  judge;  and  such  appeals  shall  be  tried  de  novo  in  the 
circuit  court.  "1  The  act  relating  to  justices  of  the  peace,  pro- 
vides, the  party  praying  an  appeal  shall  "within  twenty  days 
from  the  rendition  of  the  judgment  from  which  he  desires  to 

1 — Section  68,  chapter  3,  "Ad-  nois,  Vol.  1,  p.  300,  and  cases  cited; 
ministration  of  Estates."  Starr  &  Kurd's  R.  S.  of  111.,  1905,  p.  116. 
Curtis   AnnotatBd   Statute   of   Illi-     See  also  Grier  v.  Cable,  159  111.  35. 

528 


APPEALS     AND    WRITS     OF    ERROR. 


529 


take  an  appeal,  enter  into  bond  with  security  to  be  appfoved," 
etc.2  The  bond  given  on  appeal  from  the  court  of  probate,  must 
be  approved  by  that  court  and  filed  in  that  court.^  And  the 
writ  of  certiorari  from  the  circuit  court  to  the  county  court  in 
a  proper  proceeding,  will  be  issued  to  review  judgment  of  the 
court  of  probate  in  probate  matters.*  But  in  the  case  of  Blair 
V.  Sennott,^^  it  is  said:  "The  single  question  upon  the  record 
is:  If  the  probate  court  has  jurisdiction,  its  judgment  cannot 
be  reviewed  by  certiorari,  as  the  remedy  for  the  correction  of  any 
error  in  the  final  order,  if  any  was  committed,  is  by  appeal."^ 
Section  68  of  the  Administration  Act,  providing  for  appeals  from 
orders  of  the  county  court,  rejecting  or  allowing  claims  against 
estates  to  the  circuit  court,  applies  and  refers  to  appeals  only, 
and  does  not  authorize  the  circuit  court  to  issue  a  writ  of  cer- 
tiorari to  the  county  court  in  such  case.*^ 


2 — Section  115,  chapter  79,  "Jus- 
tices, etc."  Starr  &  Curtis  Anno- 
tated Statutes  of  Illinois,  with. 
Jones  &  Addington's  Supplements 
thereto.  Vol.  2,  p.  2436,  Vol.  4.  p. 
768,  and  authorities  cited  under 
statute;  Hurd's  R.  S.  of  111.,  1905, 
p.  115,  section  1;  article  IX.  p. 
1286,  Davis  v.  Jones,  82  111.  107; 
Pfirshing  v.  Falsh,  87  111.  260. 

3— Witter  v.  Estate  of  Witter,  65 
111.  App.  336;  Sullivan  v.  Breen, 
93  111.  App.  527;  Blood  v.  Harvey, 
81  111.  App.  190. 

4— Johnson  v.  Gillett,  52  111.  358; 
Dye  V.  Noel,  85  111.  290;  see  also 
p.  87,  section  32,  chapter  37,  en- 
titled Courts.  Starr  &  Curtis  An- 
notated Statutes  of  Illinois,  with 
Jones  &  Addington's  Supplements 
thereto,  Vol.  5,  p.  149;  Hurd's  R. 
S.  of  111.,  1905,  par.  67,  sec.  32,  p. 
608.  See  section  24,  chapter  1, 
"Abatement."  Starr  &  Curtis,  etc.. 
Vol.  1,  p.  259;  Hurd's  R.  S.  of  111., 
1905,  p.   100. 

4a— 35   111.   App.   368. 

84 


5 — Hyslop  v.  Finch,  99  111.  171. 
In  this  case  it  is  held:  There  are 
two  classes  of  cases  in  which  a 
common  law  certiorari  will  lie: 
first,  where  it  is  shown  that  the 
inferior  court  or  jurisdiction  of 
such  has  been  exceeded;  second, 
where  it  is  shown  that  the  inferior 
court  or  jurisdiction  thereof,  has 
proceeded  illegally,  and  from 
which  act  no  appeal  or  writ  of 
error  will  lie.  The  common  law 
writ  of  certiorari  simply  brings 
before  the  court,  for  inspection, 
the  record  of  the  inferior  tribunal 
or  body,  and  its  judgment  affects 
the  validity  of  the  record  alone, 
— that  is,  determines  that  it  is 
valid  or  invalid.  See  also  cases 
cited  on  top  of  page  178,  touching 
the  matter. 

6— Schaeffer  v.  Burnett,  221  111. 
315.  Under  the  facts  found  in  that 
case  and  revived  by  the  court,  it 
was  held  the  issuing  of  the  writ  of 
certiorari  to  the  county  court  was 
not  authorized. 


530  THE  LAW  OF  ESTATES. 

612.  Appeal — to  what  courts — bonds.  "Appeals  shall  be 
allowed  from  all  judgments,  orders  and  decrees  of  the  county 
court,  in  all  matters  arising  under  this  act,  to  the  circuit  court, 
in  favor  of  any  person  who  may  consider  himself  aggrieved  by 
any  judgment,  order  or  decree  of  such  court,  and  from  the 
circuit  court  to  the  supreme  court,  as  in  other  cases,  and  bonds 
with  security  to  be  fixed  by  the  county  or  circuit  court,  as  the 
case  may  be."''  This  section  should  be  considered  in  connection 
with  section  68  of  the  Administration  Act,  for  it  may  reason- 
ably be  inferred  that  this  section  was  intended  to  cover  all 
cases  under  that  act,  as  it  specially  provides  for  appeals  from 
"all  judgments,  orders  or  decrees  of  the  county  court  in  all 
matters  arising  under  this  act.  "^  The  heir  may  appear  and 
defend  claims  against  an  estate  in  the  name  of  the  adminis- 
trator.^ And  the  right  to  appear  and  defend  in  the  same  man- 
ner on  appeal  to  the  circuit  court  cannot  be  denied.  As  under 
section  124  providing  "any  person  who  may  consider  himself 
aggrieved  by  any  judgment,  order  or  decree"  of  the  county 
court  may  take  an  appeal,  need  not  necessarily  be  a  party  to 
the  record.i^  A  claimant  against  an  estate,  if  he  has  a  right 
to  appeal  in  name  and  in  behalf  of  the  administrator,  must  as- 
sign errors  in  his  own  name.^^  The  heir  appealing,  by  virtue 
of  section  124,  must  file  bond  executed  by  himself  and  security.'  ^ 
The  appeal  can  only  be  taken  from  final  orders,  judgments  and 
decrees.^ ^     The  practice  on  appeal  from  court  of  probate  to 

7 — Section  124,  chapter  3,  "Ad-  ante,    Collins   v.    Kinnare,    89    111. 

ministration  of  Estates."     Starr  &  App.   239;   Weer  v.  Grand,  88  111. 

Curtis  Annotated  Statutes  of  Illi-  490. 

nois,    with    Jones    &    Addington's  11 — Dearth  v.  Bute,  71  111.  App. 

Supplements    thereto,    Vol.    1,    p.  490. 

345;   Vol.   4,  p.   45;   Vol.  5,  p.  20,  12— Blood  v.  Harvey,  81  111.  App. 

and   cases  cited   under  section  of  190;    statute    reference,    see    ante 

statute;  Hurd's  R.  S.  of  111.,  1905.  note  7. 

p.  125.  13 — Stevens   v.    Farrell,    71    111. 

S—Ante  611,  for  statute  quoted  App.  467;   Lane  v.  Thorn,  103  111. 

at  large.  App.  218;    Ford  v.  Bank,   201   111. 

9— Motsinger  v.  Wolf,  16  111.  71.  122;  Grier  v.  Cable,  159  111.  34. 

10 — As    to    statute    see    note    7, 


APPEALS     AND    WRITS     OF    ERROR.  531 

circuit  court  being  identical   with  that  prevailing  on  appeals 
from  justices  of  the  peace.^^ 

613.  Matters  involved  on  appeal  to  circuit  court.  Such 
necessarily  involve  claims  appealed  from  and  any  matter  aris- 
ing upon  final  order  excepting  proceedings  for  the  sale  of  land 
to  pay  debts.  Thus,  generally,  from  order  approving  apprais- 
er's report,  making  allowance  to  child  of  decedent.^^  But  ap- 
peal does  not  lie  from  order  appointing  appraisers,  the  same  not 
being  considered  final.^^  Appeal  may  be  taken  to  the  circuit 
court  from  order  of  final  settlement.^  ^  But  such  appeal  does  not 
prevent  county  court  from  ordering  distribution.^^  Appeal 
may  be  taken  from  certain  items  of  administrator's  or  executor's 
account.^  ^  And  from  an  order  entered  by  probate  court  upon 
citation  against  representatives  of  estate. 2«  And  from  final 
order  in  a  proceeding  to  discover  assets  under  sections  81  and  82 
of  the  Administration  Act.^i  And  in  such  proceeding,  the  su- 
preme court  on  appeal  from  the  appellate  court  will  review  the 
facts,  as  the  proceeding  is  in  the  nature  of  proceedings  in  chan- 
cery. 

614.  Appeal  by  representative — his  bond.  "In  all  cases 
when  an  executor  or  administrator  shall  take  an  appeal  from 
the  judgment,  decree  or  order  of  any  court  or  justice  of  the 
peace  to  the  county,  circuit  or  supreme  court,  or  when  he  may 
prosecute  writs  of  error  or  certiorari,  the  appeal  certiorari  or 
supersedeas  bond  shall  be  conditioned  to  pay  the  judgment  or 
decree,  with  costs,  in  due  course  of  administration;  in  all  other 

14 — Baker  v.  Thompson,   98  111,  196;  Curtis  v.  Brooks,  71  III.  125; 

App.  190.  Millard  v.   Harris,     119     111.    185; 

15 — Wood     V.  Johnson,     13     111.  Peterman  v.  U.  S.  Rubber  Co.,  221 

App.  548.  111.  581. 

16 — Maynard  v.  Maynard,  96  111.         20 — Rockey   v.    Downey,    98    111. 

App.  479.  App.  321, 

17 — Reward    v.    Slagle,    52    111.         21 — For   statute    cited   see   ante 

33G;   Richardson  v.   Emberson,  96  511,  512,  People  v.  Benson,  99  111. 

111.  App.  405.  App.  326;  Martin  v.  Martin,  68  111. 

18— Curtis  V.  Brooks,  71  111,  125.  App.    173;    Martin  v.   Martin,   170 

19— Morgan   v.    Morgan,    83    111.  111.  23. 


532  THE  LAW  OF  ESTATES. 

respects  such  bond  shall  be  in  the  form  prescribed  by  law  in 
other  cases. '  '22  In  suing  out  a  writ  of  error  to  reverse  a  decree, 
the  administrator  executed  a  supersedeas  bond  conditioned  that 
in  case  of  affirmance  the  decree  should  be  paid  "in  due  course 
of  administration."  This  was  held  sufficient.  The  administra- 
tor was  not  bound  to  assume  an  absolute  personal  liability  for 
the  payment  of  the  decree  against  his  estate. ^3  And  it  was  held 
an  appeal  bond,  by  an  executor,  conditioned  that  he  shall  pay 
the  debt  in  due  course  of  administration,  was  good. 2*  Where  an 
administrator  appealed,  and  the  condition  of  the  bond  recites 
that  he  is  administrator,  and  at  the  end  of  his  signature  to  the 
bond  he  adds  "Adm'r,"  the  court  will  not  hold  this  is  an  indi- 
vidual bond  of  the  administrator.^^  Where  a  party  dies  pend- 
ing his  appeal  from  a  judgment  against  him,  and  his  administra- 
tor is  substituted,  an  affirmance  of  a  judgment  against  the  de- 
ceased party's  administrator,  requires  that  such  be  paid  as  other 
established  claims  in  the  court  of  probate  are  paid,  and  that  is  in 
due  course  of  administration.  And  should  the  administrator  be 
discharged  before  paying  such  judgment  it  is  held  to  be  invalid.^* 

615.    Appeal  in  proceedings  for  the  sale  of  land  to  pay  debts. 

The  right  to  appeal  is  a  statutory  right  which  did  not  exist  un- 
der the  common  law.  The  writ  of  error  was  the  writ  of  right 
under  the  common  law ;  and  it  also,  as  to  its  use,  is  now  regulated 
by  statute  in  most  of  the  States.  It  is  so  regulated  in  Illinois.^^ 
The  statute  of  1845,  relating  to  proceedings  to  sell  land  to  pay 
debts  in  due  course  of  administration,  provided  for  an  appeal 


22— Section  125,  chapter  3,  "Ad-  25— Beardsley    v.    Hill,    61    111. 

ministration  of  Estates."   Starr  &  354. 

Curtis  Annotated  Statutes  of  Illi-  26— Green  v.  Taney,  16  Colo.  3r98. 

nois.   Vol.    1,   p.     347,     ajid    cases  27— Langworthy  v.  Baker,  23  111. 

cited;  Kurd's  R.  S.  of  111.,  1905,  p.  432.       See     section     123,     of    the 

126.  County  Court  Act,  chapter  37,  en- 

23— Smith  v.   Dennison,   94    111.  titled  "Courts,"  providing  for  ap- 

5g2.  peals   and   writs   of  error.    Hurd's 

24— Mason    v.    Johnson,    24    HI.  R.  S.  of  111.,  1905,  p.  625. 
160. 


APPEALS     AND    WRITS    OF    ERROR.  533 

to  the  Supreme  Court.^s  And  where  there  is  no  statute  directing 
an  appeal  to  the  Circuit  Court,  and  for  that  matter  since  the  es- 
tablishment of  the  Appellate  Court,  the  rule  of  practice  seems 
to  be  settled,  that  the  common  law  writ  of  error  lies  to  the  Su- 
preme Court.29  To  illustrate :  In  Haines  v.  The  Peaple^^  it  ap- 
peared the  statute  gave  no  right  of  appeal  to  the  Circuit  Court, 
in  a  proceeding  to  commit  for  contempt  in  failing  to  settle  ac- 
counts under  the  order  of  the  County  Court,  and  it  was  held, 
a  writ  of  error  lies  to  the  Supreme  Court.  In  a  bastardy  case 
there  being  no  statute  permitting  appeal  from  the  County  Court 
to  the  Circuit  Court,  the  appeal  goes  direct  to  the  Appellate 
Court.  In  such  case  if  the  appeal  were  to  the  Circuit  Court  the 
contesting  parties  would  have  the  benefit  of  two  jury  trials.^i 
And  so  a  writ  of  error  will  not  lie  where  the  statute  provides 
for  an  appeal  to  the  Circuit  Court.32 

In  Kingsbury  v.  Sperry,  three  writs  of  error  from  the  county 
court  were  brought  to  review  the  proceedings  of  that  court ;  the 
statute  then  in  force  was  the  same  as  the  present,  which  pro- 
vided, that  guardians  may  mortgage  the  real  estate  of  their 
wards,  by  leave  of  the  county  court,  expressed  in  an  order  to  be 
made  for  that  purpose,  which  mortgage  so  given  can  only  be 
foreclosed  in  the  county  court.  The  statute  then  as  now  allow- 
ing an  appeal  from  such  order  or  judgment  of  the  county  court 
to  the  circuit  court  upon  giving  bond  and  security  as  directed  by 
the  court.  Held,  no  writ  of  error  would  lie  in  such  case,  the 
remedy  being  by  appeal.*^ 


28 — Same  statute  citation  as  in  Goe,  54  111.  285;   Frans  v.  People, 

note  27.  59  III.  427. 

29— Fitzpatrick  v.  Joliet,  87  111.  33—119    111.  p.   282,    and    cases 

60.  cited,  page  283.     In  Kingsbury  v. 

30 — 97  111.  262.  Sperry,  it  was  held  the  forclosure 

31 — Lee  v.  People,  140  111.  536.  of  a  mortgage,  or  the  giving  leave 

32 — Ennis  v.  Ennis,  103  111.  96;  by  the  county  court  to  a  guardian 

Frank  v.  Moses,  118  111.  435;  Hob-  to    mortgage,   does   not   involve   a 

son  V.  Paine,  40  111.  25;   Holden  v.  freehold,    within    the   meaning   of 

Herkimer,  53  111.  258;    Horner  v.  the  statute  relating  to  appeals  and 

writs  of  error. 


534  THE  LAW  OF  ESTATES. 

616.  Appeals  in  such  case  since  the  creation  of  probate  and 
appellate  courts.  When  the  legislature  of  the  State  of  Illinois 
created  Probate  and  Appellate  courts,  the  practice  relating  to 
appeals  and  writs  of  error  to  and  from  said  courts  was  much 
confused;  particularly  was  this  true,  when  the  relation  of  such 
new  courts  were  considered  in  their  new  relation  to  the  old  and 
long  established  courts.  The  Appellate  and  Probate  court  acts 
went  into  effect  July  1,  1877,  and  it  was  really  as  late  as  March 
13,  1896,  when  the  case  of  Lynn  v.  Lynn^^  definitely  settled  the 
conflict  existing  under  the  several  sections  of  the  statute  relating 
to  appeals  in  proceedings  to  sell  lands  to  pay  debts.  Soon  after 
the  establishment  of  these  new  courts  several  cases  in  their  order 
were  decided  and  now  and  then  one  of  the  statutes  in  regard  to 
appeals  were  construed  and  given  effect,  but  no  decided  review 
of  the  various  statutes  in  apparent  conflict  was  made  until  the 
decision  noted.  Thus,  in  Union  Trust  Co.  v.  Trumble,^^  it  was 
held :  That  section  8  of  the  Appellate  Court  Act  repealed,  by  im- 
plication, section  122  of  the  County  Court  Act  in  so  far  as  it  con- 
flicted with  it.  The  question  arose,  whether  or  not  an  appeal 
was  to  the  circuit  court  in  a  bastardy  case  or  direct  to  the  Appel- 
late court  from  a  judgment  of  the  county  court.^^  And  it  was 
held  that  section  8  of  the  Appellate  Court  Act  "operates  as  an 
amendment  of  section  88  of  the  Practice  Act,  and  should  be  read 
and  construed  as  a  part  thereof.  And  when  it  is  so  read,  it  is 
plain  the  effect  is  to  give  the  appeal  in  the  bastardy  case  direct 
to  the  Appellate  court,  for  although  a  bastardy  proceeding  is  not 
a  suit  at  common  law,  it  is  clearly  a  proceeding  at  law."^^  In 
the  case,  Lynn  v.  Lynn,  it  is  said :  * '  So  far  we  have  spoken  in  re- 
gard to  appeals  from  and  writs  of  error  to  county  courts,  while 
this  case  comes  from  the  Probate  court  of  Cook  county.  Section 
8  of  the  Probate  Court  Act^^  provides  that  the  practice  in  the 
probate  court  shall  be  the  same  as  now  provided  or  which  may 

34—160   111.   307.  38 — See  section  8  Probate  Court 

35 — 137  111.  146.  Act  given  at  large.  Sec.  9,  chapter 

36— Lee  v.  People,  140  111.  536.  1,  of  this  work.     Laws  of  1877,  p. 

37— Lynn  v.  Lynn,  160  III.  307.  SI. 


APPEALS     AND     WRITS     OF     ERROR.  535 

hereafter  be  provided  for  the  probate  practice  in  the  county 
court;  and  all  laws  now  in  force  or  which  may  hereafter  be 
enacted,  concerning  the  administration  of  estates,  shall  govern 
and  be  applicable  to  the  practice  of  the  probate  court.  Under 
this  section,  whatever  practice  is  provided  by  law  for  the  county 
court  applies  also  to  the  probate  court,^"  as  used  in  the  statute, 
includes  the  mode  or  manner  of  removing  cases  from  the  county 
or  probate  court  to  the  Appellate  or  Supreme  Court  by  appeal 
or  writ  of  error. ' '  Therefore  it  was  settled  beyond  further  con- 
troversy, an  appeal  lies  directly  to  the  Supreme  court  from  a 
decree  of  the  probate  court  in  a  proceeding  to  sell  lands  of  a 
decedent  for  the  payment  of  debts  and  where  a  freehold  is  in- 
volved, the  provision  of  the  act  in  relation  to  the  administration 
of  estates,  and  of  the  County  Court  Act  for  appeal  to  the  circuit 
court,  are  pro  taiito  repealed  by  the  Practice  Act  and  Appellate 
Court  Act."*^  It  is  well  settled  that  in  cases  involving  the  valid- 
ity of  a  statute  or  the  construction  of  the  constitution  the  appeal 
or  writ  of  error  lies  direct  to  the  Supreme  Court.**^ 

39 — Fleishmaa     v.     Walker,     91  Court    Act,    chapter    37.    entitled 

III.  318.  "Courts"  Appellate  Court  Act  same 

40— Lynn  v.  Lynn,  160  111.  307;  chapter  section  8;  Hurd's  R.  S.  of 

see  also  Randolph  v.   People,   130  111.,  1905,  pp.  601,  625. 

111.  533;  Grier  v.  Cable,  159  111.  29;  41— Section     89,     Practice     Act, 

see  sections  88,  Practice  Act,  chap-  Hurd's  R.  S.  of  111.,  1905,  p.  1514; 

ter  110.  Hurd's  R.  S.  of  111.,  1905,  County     of     Cook     v.     Industrial 

p.  1543;  sections  122,  123,  County  School  for  Girls,  125  HI.  540. 


CHAPTER   XXXIV 


ASSIGNMENT!  OF  DOWER  AND  HOMESTEAD— PROCEDURE 


Sec. 
617. 

618. 

619. 


620. 


621. 

622. 
623. 


624. 


Heir  or  next  freeholder  to  as- 
sign dower. 

If  assignment  not  made  with- 
in month,  suit. 

Necessary  parties,  include  oc- 
cupants, interested  parties, 
unknown  owners,  unknown 
interests. 

Summons  and  notice  by  pub- 
lication the  same  as  in  suits 
in  chancery. 

Pleadings  and  requirements, 
hearing,  decree. 

Division    by    commissioners. 

Homestead,  dwelling  house, 
assignment  of  not  to  affect 
estate  of  homestead; 
waiver. 

Report   of  commissioners;  ap- 


Sec. 

proval  by  court,  effect,  pos- 
session. 

625.  When  land  cannot  be  divided; 

proceedings. 

626.  Sale  under   decree;    lien   pre- 

served. 

627.  Damages    from    time    of    de- 

mand. 

628.  Power  of  court 

629.  Heirs,  persons  interested  may 

petition  to  have  dower  as- 
signed. 

630.  Administrator's  or  Guardian's 

sale — assignment       in       of 
dower  or  homestead. 

631.  Waste  by  person  endowed. 

632.  Representative  conveying  land 

by  order  of  court  does  not 
lose  dower. 


Sec.  617.  Heir  or  next  freeholder  to  assign  dower.  "It  shall 
be  the  duty  of  the  heir  at  law,  or  other  person  having  the  next 
estate  of  inheritance  or  freehold  in  any  lands  or  estate  of  which 
any  person  is  entitled  to  dower,  to  lay  off  and  assign  such  dower 
as  soon  as  practicable  after  the  death  of  the  husband  or  wife  of 
such  person.  "1  The  heir  is  thus  required  by  the  Dower  Act  to 
lay  off  and  assign  the  widow's  dower  as  soon  as  practicable  after 
the  death  of  the  husband,  and,  if  he  does  not  do  so  within  a 
month  next  after  such  death,  the  widow  may  file  her  petition  for 
the  assignment  of  her  dower.  The  filing  of  a  petition  by  the 
widow  for  the  assignment  of  her  dower  implies  the  neglect  of 
the  heirs  to  set  it  off  to  her  in  accordance  with  the  statutory  re- 
quirement.   To  permit  the  widow  to  employ  counsel  to  file  a  pe- 

536 


ASSIGNMENT    OF    DOWER    AND    HOMESTEAD.  537 

tition  for  the  assignment  of  her  dower  and  then  permit  the  heirs, 
who  are  made  defendants  to  such  petition,  to  come  in  and,  by  fil- 
ing a  cross-bill  for  partition,  compel  the  widow  to  pay  a  portion 
of  their  solicitor's  fees,  would  be  to  permit  such  heirs  to  take 
advantage  of  their  own  wrong,  inasmuch  as  the  filing  of  the  pe- 
tition for  dower  by  the  widow  is  the  result  of  their  own  neglect 
to  set  off  her  dower,  as  required  by  section  18  of  the  Dower  Act.- 
This  assignment  may  be  by  parol,  and  when  it  is  impracticable 
to  assign  dower  by  metes  and  bounds,  an  allotment  may  be  made 
to  the  holder  of  the  dower  estate  out  of  his  or  her  proportionate 
share  of  the  rents  and  profits  arising  from  the  entire  property. 
The  holder  of  the  dower  estate  may,  by  an  arrangement  with  the 
heir  or  devisee,  suffer  him  to  rent  out  the  land  with  the  under- 
standing that  such  holder,  in  lieu  of  dower,  is  to  receive  one- 
third  of  his  or  her  proportion  of  the  annual  rentals.^  Where 
no  demand  is  made,  or  petition  filed,  for  the  assignment  of  dow- 
er, the  heirs-at-law  are  entitled  to  the  whole  of  the  rents.  Dam- 
ages are  allowed  from  the  time  of  demand  and  a  refusal  to  assign 
dower.  One-third  of  the  rents  of  the  land  in  which  there  is 
dower  forms  a  proper  measure  of  such  damages,  and  until  de- 
mand is  made,  the  surviving  wife  or  husband  is  entitled  to  no 
damages.  The  filing  of  a  petition  for  the  assignment  of  dower 
against  the  heirs-at-law  is  a  sufficient  demand  in  itself  to  give  a 
claim  to  one-third  of  whatever  rents  have  accrued  since  that  time 
as  damages.^  The  right  to  dower  is  created  by  law;  the  partic- 
ular portion  of  the  premises  to  be  enjoyed  by  the  widow  or  sur- 
viving husband  is  ascertained  by  the  assignment;  and  as  the  as- 

1— Section      18,      chapter        41,  3— Lenfer  v.  Henke,  73  111.  405; 

"Dower."      Starr    &   Curtis   Anno-  Rawson   v.   Corbett,    150   111.    466; 

tated     Statutes     of     Illinois,  with  10  Am.  &  Eng.  Ency.  of  Law,  26. 

Jones  &  Addington's  Supplements  ed.,  pp.  172,  175,  178;   Sill  v.  Sill, 

thereto.  Vol.  1.  p.  1469,  and  cases  185  111.  608. 

cited;    Vol.    4,    p.    447,   and   cases  4— Bedford  v.  Bedford,   136   III. 

cited;    Kurd's  R.   S.   of  111.,   1905,  854;  Peyton  v.  Jeffries,  50  111.  143; 

p.  770.  Rawson   v.    Corbett,    150   111.   466; 

2— Gehrke    v.    Gehrke,    190    111.  Sill  v.  Sill,  185  111,  608. 
173;    Rawson  v.   Corbett,   150  111. 
466. 


538  THE  LAW  OF  ESTATES. 

signment  does  not  create  or  transfer  any  interest  in  land  it  may 
be  made  without  writing — by  a  verbal  agreement  made  and  en- 
tered into  between  the  owner  of  the  fee  and  the  party  entitled 
to  dower.^  The  homestead  estate  is  measured  and  defined  by 
value  alone;  it  may  extend  to  and  embrace  the  entire  body  of 
land  to  which  it  attaches ;  and  that  estate  may  also  be  assigned  by 
parol.^  It  is  not  necessary  that  legal  proceedings  should  be  had 
in  assignment  of  dower ;  and  if  the  same  is  fair,  it  will  be  consid- 
ered validJ  Assignment  of  dower  will  not  be  indefinitely  de- 
layed to  await  the  slow  progress  of  another  suit  under  control  of 
adverse  interests,  involving  matters  of  an  entirely  different  na- 
ture, and  under  which  the  assignment  of  dower  was  merely  inci- 
dental to  the  pending  proceedings.^  And  in  proceedings,  where 
the  decree  is  held  correct,  it  is  not  necessary  to  serve  a  copy  of 
the  decree  on  the  party  in  possession  before  issuing  a  writ  of 
possession  and  obtaining  service  of  the  same.^  In  a  proceeding 
for  the  assignment  of  dower  by  a  citizen  of  Illinois,  against  one 
defendant  of  the  same  State  and  another  a  citizen  of  the  State  of 
New  York,  and  where  the  property  involved  was  owned  by  the 
defendants  jointly,  it  was  held :  As  these  were  necessary  parties 
to  such  suit,  the  cause  cannot  be  removed  from  the  State  to  the 
Federal  court.^'' 

Personal  representatives,  executors  and  administrators  are  not 
necessary  parties  to  a  bill  for  assignment  of  dower  and  home- 
stead.^ ^  A  surviving  husband  or  wife  cannot  sell,  convey  or 
lease  dower  or  homestead  rights  to  a  stranger  to  the  title,  before 
such  dower  and  homestead  have  been  set  off  and  assigned;  and 

5 — Schnebly  v.  Schnebly,  26  111.  8 — Heuschkel    v.  Heuschkel,    86 

116;  Lenfers  v.  Henke,  73  111.  405;  111.  App.  135. 

5  Am.  &  Eng.  Ency.  of  Law,  924,  9_Agnew     v.     Lichten.     19     111. 

925;    1   Washburn   on   Real   Prop-  .        ^g 

erty,   256;    Pearce   v.    Pearce,    184 

jjj    239  10— Rand   v.   Walker,  117  U.   S. 


340. 
293.  11 — Higgins  v.  Higgins,  219  IlL 

7 — Campbell    v.    Moore,    15    111.     146. 


6 — Pearce  v.  Pearce,  184  111.  p. 
)3. 

7— Can 
App.  129. 


ASSIGNMENT    OF    DOWER    AND    HOMESTEAD.  539 

damages  will  not  be  allowed  in  condemnation  proceedings  to  a 
stranger  holding  a  lease  executed  under  such  circumstances. 
And  it  is  also  held,  where  an  understanding  between  a  surviving 
husband  and  his  daughters  was,  that  their  father  might  reside 
on  the  home  place,  and  receive  the  rents  therefor,  while  each 
daughter  was  to  receive  rents  from  other  property,  amounts  to 
an  arrangement  for  division  of  the  rents  only,  and  does  not 
amount  to  a  parol  assignment  of  dower  and  homestead;  partic- 
ularly is  this  so,  where  it  appears  under  such  arrangement,  the 
surviving  husband  pays  the  taxes  on  all  the  property  and  keeps 
up  the  repairs  at  his  own  expense.^  ^ 

618.    If  assignment  not  made  within  month — suit.    "If  such 

heir  or  person  shall  not,  within  one  month  next  after  such  death, 
satisfactorily  assign  and  set  over  to  the  surviving  husband  or 
wife,  dower  in  and  to  all  lands,  tenements  and  hereditaments 
whereof  by  law  he  or  she  is  or  may  be  dowable,  such  survivor 
may  sue  for  and  recover  the  same  by  petition  in  chancery,  as 
hereinafter  prescribed,  against  such  heir  or  other  person,  or  any 
tenant  in  possession,  or  any  other  person  claiming  right  or  pos- 
session in  said  estate. "^^  ''The  petition  may  be  filed  in  any 
court  of  record,  of  competent  jurisdiction  in  the  county  where 
the  estate  or  some  part  thereof  is  situated.  "^  ^  "  Infants  may  pe- 
tition by  guardian  or  next  friend,  and  other  persons  under 
guardianship  by  their  conservators.  When  an  infant  or  person 
under  guardianship  is  a  defendant,  he  may  appear  by  guardian 
or  conservator,  or  the  court  may  appoint  a  guardian  ad  litem  for 
such  person,  and  compel  the  person  so  appointed  to  aet."^^  "The 
petition  shall  set  forth  the  nature  of  the  claim,  and  particularly 
specify  the  premises  in  which  dower  is  claimed,  and  shall  set 
forth  the  interests  of  all  parties  interested  therein  so  far  as  the 

12 — C.  B.  &  D.  Ry.  Co.  v.  Kelly,  14— Section       21,      chapter     41, 

221  III,  498;  see  also  Best  v.  Jenks,  "Dower." 

123  111.  447;  Union  Brewing  Co.  v.  15 — Section       22,     chapter      41, 

Meier,  163  111.  424.  "Dower." 

13— Sections  19,  20,  chapter  41. 
"Dower." 


540  THE  LAW  OF  ESTATES. 

same  are  known  to  the  petitioner,  and  shall  pray  for  the  assign- 
ment of  such  dower.  "^^  Neither  minor  heir  nor  his  guardian  can 
make  a  valid  assignment  of  dower;  where  such  are  the  only  in- 
terested parties  the  proceeding  must  of  necessity  be  by  the 
court.^^  And  notwithstanding  the  statute,  the  guardian  has  no 
power  to  enter  the  appearance  of  his  ward  in  a  suit  against  the 
latter,  where  the  ward  has  not  been  served  with  process.^  ^  But 
the  guardian  may  appeal  for  ward.^^ 

619.  Necessary  parties  include  occupants,  all  interested  par- 
ties, unknown  owners,  unknown  interests.  ' '  Every  person  hav- 
ing any  interest  in  the  premises,  whether  in  possession  or  other- 
wise, and  who  is  not  a  petitioner,  shall  be  made  a  defendant  to 
such  petition. "20  "When  there  are  any  persons  interested  in  the 
premises  whose  names  are  unknown,  or  the  share  or  quantity  of 
interest  of  any  of  the  parties  is  unknown  to  the  petitioner,  or 
where  such  share  or  interest  shall  be  uncertain  or  contingent,  or 
the  ownership  of  the  inheritance  shall  depend  upon  an  executory 
devise,  or  the  remainder  shall  be  contingent,  so  that  such  parties 
cannot  be  named,  the  same  shall  be  stated  in  the  petition,  "^i  "  ^u 
persons  interested  in  the  premises  in  which  dower  is  claimed, 
whose  names  are  unknown,  may  be  made  parties  to  such  petition 
by  the  name  and  description  of  unknown  owners  of  the  premises, 
or  as  the  unknown  heirs  of  any  person  who  may  have  been  in- 
terested in  the  same. '  '-^ 

620.  Summons  and  notice  by  publication  the  same  as  suits 
in  chancery.     "The  defendants  to  any  such  petition  shall  be 

16— Reference     to     statutes     in  19— Sill  v.  Sill,  185  111.  601. 

notes   13,   14,   15.     Starr  &  Curtis  20— Section      23,      chapter      41, 

Annotated     Statutes     of     Illinois,  "Dower." 

with  Jones  &  Addington's  Supple-  21 — Section      24,      chapter      41, 

ments    thereto,    Vol.    2,    pp.    1469,  "Dower." 

1470,  and  cases  cited;   Vol.  4,  pp.  22— Section      25,      chapter      41. 

447,  448,  Kurd's  R.  S.  of  111.,  1905,  "Dower;"  reference     to     statutes, 

p.  770.  notes  20,   21,   22.     Starr  &  Curtis 

17 — Bonner  v.   Peterson,   44   111.  Annotated     Statutes     of     Illinois, 

253;  statute  given,  note  14.  Vol.   2,  p.   1470;    Kurd's  R.    S.    of 

18— Dickenson  v.  Dickenson,  124  111.,  pp.  770,  771. 
111.  483. 


ASSIGNMENT    OP    DOWER    AND    HOMESTEAD.  541 

summoned  in  the  same  manner  as  defendants  to  suits  in  chan- 
cery." Unknown  owners,  or  parties  in  interest,  of  the  premises, 
and  the  unknown  heirs  of  any  such  persons,  may  be  notified  by 
advertisement  as  in  cases  in  chancery. "23  "When  it  shall  ap- 
pear by  affidavit  filed,  as  in  cases  in  chancery,  that  any  defend- 
ant resides  or  has  gone  out  of  the  State,  or  upon  due  inquiry 
cannot  be  found,  or  is  concealed  within  this  State  so  that  process 
cannot  be  served  on  him,  and  the  affiant  shall  state  the  place  of 
residence  of  such  defendant,  if  known,  or  that  upon  diligent  in- 
quiry his  place  of  residence  cannot  be  ascertained,  he  may  be 
notified  in  the  same  manner  as  in  such  case  in  chancery.  "2* 
"Non-resident  defendants  may  be  served  by  a  copy  of  the  peti- 
tion in  the  same  manner  that  such  defendants  in  chancery  may 
be  served  by  a  copy  of  the  bill  of  complaint,  and  the  service 
thereof  may  be  proved  as  in  such  case  provided. "^^  "Any  de- 
fendant who  is  not  summoned,  served  with  a  copy  of  the  peti- 
tion, or  shall  not  receive  the  notice  required  to  be  sent  him  by 
mail,  or  the  heirs,  devisees,  executors,  administrators  and  other 
legal  representatives  of  such  person,  may  appear  and  answer  the 
petition  within  the  same  time  and  upon  the  same  conditions,  and 
with  like  effect  as  in  other  cases  in  chancery,  "^s 

621.  Pleadings  and  requirements — hearing — decree.  "The 
petitioner  may,  in  his  petition,  require  the  defendants  or  any  of 
them  to  answer  his  petition  on  oath,  in  which  case  the  answer 
shall  have  the  same  effect  as  an  answer  in  chancery  under 
oath. "2'^  "During  the  pendency  of  any  such  suit  or  proceeding 

23 — Sections  26,   27,  chapter  41,  ments    thereto,  Vol.    2,    p.     1471; 

"Dower."  Kurd's  R.   S.   of  111.,   1905,  p.  771. 

24 — Section      28,      chapter      41,  See  also  sections  14  to  22,  chapter 

"Dower."  22,  entitled   "Chancery."     Starr  & 

25 — Section      29,      chapter      41,  Curtis,  etc..  Vol.  1,  pp.  557  to  577, 

"Dower."  and  cases  cited;   Vol.  4,  p.  95,  et 

26 — Section      30,      chapter      41,  seq.,  and  cases  cited;  Kurd's  R.  S. 

"Dower."     Reference    to    statutes,  of  111.,  1905,  pp.  228,  229,  230;  Oet- 

notes  23,  24,  25,  26.     Starr  &  Cur-  tinger  v.  Specht,  162  111.  1S2. 
tis  Annotated  Statutes  of  Illinois,         27 — Section      31,      chapter      41, 

with  Jones  &  Addington's  Supple-  "Dower."    Statute  reference   same 

as  note  26. 


542  THE  LAW  OF  ESTATES. 

any  person  claiming  to  be  interested  in  the  premises  may  appear 
and  answer  the  petition,  and  assert  his  or  her  rights,  by  way  of 
interpleader;  and  the  court  shall  decide  upon  the  rights  of  per- 
sons appearing  as  aforesaid,  as  though  they  had  been  made  par- 
ties in  the  first  instance. "-^  "Petitions  for  the  recovery  and  as- 
signment of  dower  shall  be  heard  and  determined  by  the  court 
upon  the  petition,  answer,  replication,  exhibits  and  other  testi- 
mony without  the  necessity  of  formal  pleading.  The  court  may 
direct  an  issue  or  issues  to  be  tried  by  a  jury,  as  in  other  cases  in 
equity.  "29  "When  the  court  adjudges  that  the  one  entitled  there- 
to recover  dower,  it  shall  be  so  entered  of  record,  together  with  a 
description  of  the  land  out  of  which  he  or  she  is  to  be  so  en- 
dowed, and  the  court  shall  thereupon  appoint  three  commission- 
ers not  connected  with  any  of  the  parties  either  by  consanguinity 
or  affinity,  and  entirely  disinterested,  each  of  whom  shall  take 
the  following  oath,  etc."^°  Strict  proof  of  regular  paper  title 
need  not  be  made  on  issue  of  non-seizen;  prima  facie  proof  is 
sufficient  by  deed  or  other  instrument,  unless  rebutted  or  such 
deeds  are  attacked  for  fraud  or  forgery  or  some  other  cause.^^ 
But  a  claim  by  a  defendant  based  upon  improvements  made  on 
the  land  in  which  petitioner  is  not  entitled  to  dower,  must  be 
strictly  averred  and  proved ;  and,  if  such  proof  is  not  made,  he 
cannot  complain  that  no  mention  is  made  of  improvements  in 
the  commissioner's  report.^s  The  record  must  show  that  the 
commissioners  were  duly  sworn  as  required  by  the  statute.^^  And 
the  statutory  oath  prefixed  to  the  report  of  the  commissioners 
must  be  a  part  of  the  report  and  record.^^ 

622.    Division  by  commissioners.    "The  commissioners  shall 
go  upon  the  premises,  and  if  the  same  are  susceptible  of  division, 

28 — Section      32,      chapter      41,  pp.   1471  to  1474  and  cases  cited; 

"Dower."  Kurd's  R.  S.  of  111.,  1905,  p.  771. 

29— Section     33,     chapter     41,        31— Becker  v.  Quigg,  54  111.  390; 

"Dower."  Reich  v.  Berdel,  120  111.  499. 

30— Section      34,      chapter      41,         32— Reich  v.  Berdel,  120  111.  499. 
"Dower."    Statute  reference,  notes        33 — Lloyd  v.  Malone,  23  111.  43; 

28,  29,  30.     Starr  &  Curtis  Anno-  Durham  v.  Mulkej-,  59  111.  91. 
tated  Statutes  of  Illinois,  Vol.   2,        34— Lloyd  v.  Malone,  23  111.  43. 


ASSIGNMENT    OF    DOWER    AND    HOMESTEAD.  543 

without  manifest  prejudice  to  the  parties  in  interest,  shall  set  off 
and  allot  to  the  person  entitled  thereto  his  or  her  dower,  by  metes 
and  bounds,  according  to  quality  and  quantity,  of  all  the  prem- 
ises described  in  the  order  of  the  court. "^5  "The  dower  need 
not  be  assigned  in  each  tract  separately,  but  may  be  allotted  in  a 
body  out  of  one  or  more  of  the  tracts  of  land,  when  the  same  can 
be  done  without  prejudice  to  the  interests  of  any  person  inter- 
ested in  the  premises.  "^^ 

The  commissioners  have  no  power  to  make  partition  in  such 
proceedings,  among  the  interested  parties  entitled  to  dower.3'^ 
Their  duty  is  to  set  off  one-third  according  to  quantity  and  qual- 
ity by  metes  and  bounds,  where  it  is  practicable  so  to  do;  and 
the  court  in  such  proceeding  will  require  this  to  be  done  in  all 
cases,  where  it  does  not  prejudice  the  rights  of  any  interested 
party,  and  where  it  is  practicable  to  do  so.^^  The  statute  quoted, 
which  provides,  that  in  certain  cases,  where  there  are  several 
tracts  of  land  in  which  a  wife  or  husband  may  be  entitled  to 
dower,  the  same  may  be  set  oft'  and  allotted  to  her  in  a  body,,  has 
no  application  where  there  are  purchasers  of  such  lands,  or  a 
portion  of  them,  who  have  acquired  interests  therein.  The  mere 
fact  that  a  widow  is  occupying  one  of  several  distinct  parcels  of 
land,  as  a  homestead,  in  all  of  which  she  is  entitled  to  dower,  will 
not  authorize  the  allotment  of  her  entire  dower  interest  in  all  the 
parcels,  out  of  that  portion  occupied  as  a  homestead.^^  Dower  is 
not  assignable  from  part  of  an  estate  in  lieu  of  the  whole,  unless 
it  be  done  with  the  consent  of  parties  in  interest.^"  Nor  can  such 
interest  be  assigned  to  one  heir,  relieving  the  lands  of  another.'*^ 
Where  A  acquired  title  to  land  subject  to  the  dower  right  of 

35 — Section      35,      chapter      41,         37 — Lloyd  v.  Malone,  23  111.  43. 

"Dower."  3S— Atkins  v.  Merrell,  39  111.  62. 

36— Section      36,      chapter      41,         „„     ^  ,  ,„  . 

"Dower."     Statute  reference,  notes         39-Peyton    v.    Jeffries,    50    111. 

35,  36.     Starr  &  Curtis  Annotated  ■*■ 

Statutes    of    Illinois,    Vol.    2,    pp.  40— Schnebly  v.  Schnebly,  26  111. 

1474,    1475;    Kurd's   R.   S.    of   111.,  H^- 

pp.  771,  772.  See  also  Longshore  v.  41 — Haines  v.    Hewett,    129    HI. 

Longshore,  200  111.  474.  347. 


544  THE  LAW  OF  ESTATES. 

the  complainant,  and  after  A's  death  dower  was  assi^ed  to 
his  widow  in  the  same,  and  the  court  subsequently  assigned  the 
same  land  to  the  elder  dowress  that  had  been  assigned  to  A's 
widow.  Held:  This  being  a  vital  error,  it  follows  that  the 
assignment  of  damages  was  wrong,  and  the  decree  of  the  court 
must  be  reversed,  and  the  cause  remanded  with  directions  to 
re-assign  dower  of  appellee's  interest,  upon  the  bases  herein 
indicated.  The  rule  governing  the  decision  being  as  follows: 
"If  before  the  assignment  of  dower  to  the  ancestor's  widow, 
the  grantee  should  die,  and  his  own  widow  be  endowed,  then  the 
subsequent  assignment  of  dower  to  the  elder  dowress  would 
operate  to  interrupt  the  enjoyment  of  the  other  widow  in  a 
proportionate  part,  during  the  lifetime  of  the  former,  but  no 
longer. '  '^^ 

623.  Homestead — dwelling  house — assignment  of  n.ot  to  af- 
fect estate  of  homestead — waiver.  "The  surviving  husband  or 
wife  shall  have  the  homestead  or  dwelling  house,  if  he  or  she 
desires,  and  such  allotment  shall  not  affect  his  or  her  estate  of 
homestead  therein,  but  if  the  dower  is  allotted  out  of  other 
lands,  the  acceptance  of  such  allotment  shall  be  a  waiver  and 
release  of  the  estate  of  homestead  of  the  person  entitled  to  dower, 
and  his  or  her  children,  unless  it  shall  be  otherwise  ordered  by 
the  court.  "*^  In  a  case  where  a  mortgage  was  foreclosed,  in 
which  the  wife  did  not  join;  the  decree  in  such  case  provided 
and  directed  a  sale  of  the  residue,  subject  to  dower,  which  was 
held  valid.'*"*  The  surviving  husband  or  wife  under  the  statute 
have  conferred  upon  them  the  homestead  and  dower  rights  when 
assigned.     No  third  person,  nor  any  purchaser  or  grantee  of 

42 — 1    Scribner    on   Dower,   319,  See   also   section  25,  chapter  106, 

and  cases  cited,  note  3;   Steele  v.  entitled  "Partition."  Star  &  Curtis, 

La  Frambois,  68  111.  456.  etc..  Vol.  3,  pp.  2921,  2924;  Kurd's 

43— Section      37,      chapter      41,  R.  S.  of  111.,  1905,  pp.  1495,  1496. 

"Dower."      Starr    &   Curtis   Anno-  See  also  Walker  v.  Doan,  108  IlL 

tated   Statutes  of   Illinois,  Vol.   2,  236;   Same  v.   Same,  101  111.  628; 

pp.    1475,    1478.    and    cases   cited;  Cool  v.  Jackson,  13  111.  App.  560. 
Kurd's  R.  S.  of  111.,  1905,  p.  772.         44— Kail  v.  Karris,  113  111.  410. 


ASSIGNMENT    OF    DOWER    AND    HOMESTEAD.  545 

the  estate  of  homestead  has  that  right.^'^  The  estate  of  home- 
stead can  have  no  separate  existence  independent  of  the  title 
of  the  householder,  which  title  constitutes  one  of  its  essential 
elements,  and  from  which  it  is  inseparable.*^  And  it  is  held 
that  under  section  4,  chapter  52,  entitled  "Exemptions,"*'^  the 
homestead  estate  is  an  estate  in  land  and  not  merely  an  exemp- 
tion; and  when  the  interest  of  the  householder  does  not  exceed 
$1,000  in  value  the  homestead  estate  comprises  his  entire  title, 
leaving  no  interest  to  which  liens  can  attach  or  which  can  be 
conveyed  separately.*^ 

624.    Report  of  commissioners — approval  by  court,  effect^ 

possession.  "The  commissioners  shall  make  report  in  writing, 
signed  by  at  least  two  of  them,  showing  what  they  have  done, 
and  if  they  have  made  a  division,  describing  the  premises 
allotted  by  metes  and  bounds  or  other  proper  description;  and 
the  allotment  so  made,  if  approved  by  the  court,  shall  vest  in 
the  person  entitled  thereto  an  estate  in  the  lands  and  tenements 
set  off  and  allotted  to  him  or  her  for  and  during  his  or  her 
natural  life;  and  the  court  shall  forthwith  cause  such  person 
to  have  possession  by  writ  directed  to  the  sheriff  for  that  pur- 
pose. "*9  When  premises  are  assigned  for  dower,  the  assign- 
ment, like  a  deed,  without  mention  of  appurtenances,  will  pass 
all  things  which  are  incidents  appendant  or  appurtenant 
thereto;  and  in  the  absence  of  any  restrictions  in  the  proceed- 
ings, it  will  be  presumed  that  they  were  taken  into  considera- 
tion by  the  commissioners  and  regarded  as  a  charge  upon  the 
other  portion  in  favor  of  that  allotted. ^*^  By  this  statute,  the 
approval  of  the  report  of  the  commissioners  setting  off  dower 

45— Best  V.  Jenks,  123  111.  447;  48— Roberson  v.  Tipple,   209  III. 

C.  B.  &  D.  Ry.  Co.  v.  Kelley,  221  40,  and  cases  cited  on  page  41. 

111.  498,  and  cases  cited.  49 — Section       38,     chapter      41, 

46 — Section   4,  chapter  52,  "Ex-  "Dower."      Starr   &   Curtis   Anno- 

emptions."     Starr  &  Curtis  Anno-  tated   Statutes  of  Illinois,  Vol.   2, 

tated  Statutes  of  Illinois,  Vol.  2,  p.  p.  147,  and  cases  cited;  Kurd's  R. 

1874.  S.  of  111.,  1905,  p.  772. 

50— Morrison  v.  King,  62  111.  36. 
85 


546  THE  LAW  OF  ESTATES. 

to  a  widow,  vests  in  her  an  estate  for  life  in  the  land  assi^ed 
to  her,  and  the  court  is  required  forthwith  to  cause  her  to 
have  possession  by  a  writ  directed  to  the  sheriff  for  that  pur- 
pose.^i  Where  a  specific  sum  of  money  was  awarded  in  lieu  of 
real  estate  with  consent  of  dowress ;  it  was  held,  the  real  estate 
must  remain  intact,  though  not  producing  annual  income  suffi- 
cient to  meet  the  dower  awarded.^2  i^  ^-j^q  following  case,  a 
decree  was  entered  finding  sufficient  facts  to  sustain  dower, 
which  the  court  held  valid.^^ 

625.  When  land  cannot  be  divided — proceedings.  "When 
the  estate  out  of  which  dower  is  to  be  assigned  consists  of  a 
mill  or  other  tenement  which  cannot  be  divided  without  dam- 
age to  the  whole,  and  in  all  cases  where  the  estate  cannot  be 
divided  without  great  injury  thereto,  the  dower  may  be  as- 
signed of  the  rents,  issues  and  profits  thereof,  to  be  had  and 
received  by  the  person  entitled  thereto  as  tenant  in  common  with 
the  owners  of  the  estate,  or  a  jury  may  be  empaneled  to  inquire 
of  the  yearly  value  of  the  dower  therein,  who  shall  assess  the 
same  accordingly,  and  the  court  shall  thereupon  enter  a  decree 
that  there  be  paid  to  such  person  as  an  allowance  in  lieu  of 
dower,  on  a  day  therein  named,  the  sum  so  assessed  as  the  yearly 
value  of  such  dower,  and  the  like  sum  on  the  same  day  of  each 
year  thereafter  during  his  or  her  natural  life,  and  may  make 
the  same  a  lien  on  any  real  estate  of  the  party  against  whom 
such  decree  is  rendered,  or  cause  the  same  to  be  otherwise 
secured.  "^^  Where  taxes  were  paid  and  improvements  made 
by  widow,  before  she  was  assigned  dower  upon  lands  she  was 

51 — Agnew  v.  Fultz,  119  111.  296.  tion  of  statute:    Bonner  v.   Peter- 

52— Larson  V.  Wolfe,  163  111.  552.  son,  44   111.   253;   Fleming  v.  Ven- 

53— Gogan   v.   Burdick,   182    111.  num,  45  111.  374;  Walsh  v.  Reis,  50 

126.  Ill-  477;   Meyer  v.  Pfeiffer,  50  111. 

54 — ^Section      39,      chapter      41,  485;   Donoghue  v.  Chicago,  57  IlL 

"Dower."      Starr   &   Curtis    Anno-  235;  Atkins  v.  Merrell,  39  111.  62; 

tated  Statutes  of  Illinois,  Vol.  2,  p.  American  v.  Rimpert,  75  111.  228; 

1476,  and  cases  cited;  Kurd's  R.  S.  Scammon  v.  Campbell,  75  111.  223; 

of  111.,  1905,  p.  772.     And  see  the  Wheeler    v.    Dav^^son,    63    111.    54; 

following    cases,    making    applica-  Kitt  v.   Scammon,  82  111.  519. 


ASSIGNMENT    OP    DOWER    AND    HOMESTEAD.  547 

using,  it  was  held  she  could  not  recover  the  money  so  paid, 
because  the  rents  until  dower  was  demanded  belofnged  to  heirs, 
and  the  taxes  paid  and  the  improvements  made  were  an  offset 
to  rents  belonging  to  heirs.'^^  Annual  expenses  and  needed 
repairs  will  be  deducted  from  yearly  value  of  rentals  in  con- 
sidering amount  of  dower  to  be  awarded.^^  But  the  increase 
of  value  and  rentals  enures  to  the  benefit  of  party  entitled  to 
dower.57  And  there  is  no  difference  in  the  legal  effect  of  a 
conveyance  to  a  stranger  for  a  valuable  consideration,  and  one 
to  a  child  for  a  good  consideration,  as  regards  the  right  of  the 
grantor's  widow  to  dower  in  the  premises  conveyed.  In  assess- 
ing the  value  of  the  widow's  dower,  in  such  case,  she  will  be 
confined  to  the  improvements  on  the  land  at  the  time  of  the 
conveyance,  although,  after  the  conveyance,  the  grantor  may 
have  erected  a  house  on  the  premises  with  his  own  means.^® 

626.  Sale  under  decree — lien  preserved.  "Whenever  any 
such  decree  is  made  a  lien  on  any  real  estate,  as  provided  in  the 
preceding  section,  and  a  sale  of  such  real  estate  shall  become 
necessary  to  satisfy  any  such  installment,  the  property  shall  be 
sold  subject  to  the  lien  of  the  installment  not  then  due,  unless 
the  court  shall  at  the  time  direct  otherwise,  and  subsequent 
sales  may,  from  time  to  time,  be  made  to  enforce  such  lien  as 
the  installments  may  become  due,  until  all  the  installments  are 
paid."^^ 

627.  Damages  from  time  of  demand.  "Whenever,  in  any 
action  brought  for  the  purpose,  a  surviving  husband  or  wife 

55 — ^Wheeler  v.  Dawson,  63  111.  1S59,  p.  48,  sec.  1,  which  extends 

54.  the  cases,  where  allotment  of  ali- 

56 — Carter    v.    Stookey,    89    111.  mony  or  of  specific  sums  of  money 

279.  were  made  liens  on  land.    Starr  & 

57— Gove  V.  Gather,  23  111.  585;  Curtis  Annotated   Statutes  of  Illi- 

Stookey  v.  Stookey,  89  111.  40.  nois,  Vol.  2,  p.  1477;  Kurd's  R.  S. 

58— Stookey  v.   Stookey,   89  111.  of  111.,  1905,  p.  772.     See  also  in 

40.  this  connection  section   1,  chapter 

59 — Section      40,      chapter     41,  3,  entitled  "Conveyances."  Starr  & 

"Dower."     In  lieu  of  part  of  law,  Curtis,  etc.,  Vol.  1,  p.  910;  Kurd's 

R.  S.  p.  463. 


548  THE  LAW  OF  ESTATES. 

recovers  dower  in  any  lands,  he  or  she  shall  be  entitled  to 
recover  reasonable  damages  from  the  time  of  his  or  her  demand, 
and  a  refusal  to  assign  reasonable  dower,  which  may  be  assessed 
by  the  court,  or  a  jury,  if  required,  may  be  impaneled  for  that 
purpose,  and  execution  may  issue  therefor.  "^^  Where  a  sur- 
viving husband  or  wife  dies  before  assignment  of  dower,  their 
representatives  cannot  have  damages  assessed;  and  this  was 
decided  where  the  widow  dies,  while  her  suit  for  dower  is  pend- 
ing. The  right  to  dower  terminates  on  the  death  of  the  widow ; 
and  of  course  on  the  death  of  a  surviving  husband.  The  dam- 
ages being  a  consequence  of  a  recovery  of  dower  could  only  be 
assessed  when  there  was  a  judgment  in  favor  of  dower.^^  Dam- 
ages against  minor  heir  cannot  be  recovered.  This  is  based 
upon  the  legal  status  of  the  minor  to  the  effect  that  a  guardian 
or  minor  cannot  assign  the  widow  her  dower  in  the  lands  of  her 
husband,  so  as  to  bind  the  minor  on  arriving  at  age;  and 
cannot,  therefore,  be  in  default  in  not  making  such  assignment, 
if  demanded.  And  where  lands  are  condemned  for  public  im- 
provements, the  assessment  of  the  damages  therefor,  unless  the 
contrary  appears,  satisfies  all  the  title  to  the  property,  includ- 
ing the  fee  simple  and  all  lesser  estates.  P  having  dower  in  the 
land  appropriated  by  the  city  to  public  use,  was  in  equity  held 
to  have  dower  in  the  proceeds  paid  in  satisfaction  of  the  judg- 
ment as  damages  for  such  appropriation  of  the  land  for  public 
use.®  2  And  it  is  the  settled  law  that  the  bringing  of  suit  for 
dower  amounts  to  a  valid  demand.®^  No  decree  should  be  entered 
for  damages  before  demand  is  made,  it  is  held  error  to  do  so.®* 
Where  yearly  value  in  a  dower  proceeding  is  assessed  under 


60— Section     41,     chapter     41,  203;    Strawn   v.    Strawn,    50  III. 

"Dower."     Part  of  R.   S.  1845,   p.  257;   Atkins  v.  Merrell,  39  111.  63. 

202,  sec.  26.    Starr  &  Curtis  Anno-  62— Bonner  v.  Peterson,  44  111. 

tated  Statutes  of  Illinois,  Vol.  2,  p.  253. 

1478,  and  cases  cited;  Kurd's  R.  S.  63— Atkins    v.    Merrell,    39  111. 

of  111.,  1905,  p.  772.  62;  Bonner  v.  Peterson,  44  111.  253. 

61— Turney  v.  Smith,  14  lU.  241,  64— Cool     v.    Jackman,     13  111. 

and  see  Simpson  v.  Ham,  78  111.  App.  360. 


ASSIGNMENT    OP    DOWER    AND    HOMESTEAD.  549 

section  39,"^  the  jury  selected  to  try  the  issue,  should 
also  assess  damages ;  and  if  they  fail  to  do  so  and  the  court  in  its 
decree  awards  damages  not  assessed  by  the  jury,  it  will  be 
irregiilar.'^^  On  a  petition  for  the  assignment  of  dower,  the  court 
has  complete  jurisdiction,  when  it  has  assigned  dower,  to  cause 
the  widow's  damages  to  be  assessed  for  the  detention  of  her- 
dower;  and  when  she  elects  to  proceed  by  petition  under  the 
statute,  and  has  her  dower  assigned,  she  cannot  then  abandon 
that  proceeding  and  invoke  the  aid  of  a  court  of  chancery  to 
take  an  account  of  the  mesne  profits.  Her  remedy  in  the  pro- 
ceeding by  petition  is  full  and  complete,  and  she  should  pursue 
it  then,  and  if  she  fails  to  do  so,  she  will  be  deemed  to  have 
waived  it.^'^  As  between  themselves — ^the  heirs  and  widow — in 
redeeming  land  from  mortgage  sale  it  is  the  duty  of  each  to 
contribute  a  ratable  proportion  of  the  redemption  money,  ac- 
cording to  the  value  of  their  respective  interests.  Thus,  the 
heirs,  by  paying  off  the  mortgage  debt,  should  not  be  permitted 
thereby  to  impose  the  whole  burden  of  redemption  from  the 
mortgage  upon  the  widow,  in  order  that  she  may  avail  herself 
of  her  dower  right,  and  thereby  compel  her  to  refund  to  them 
the  whole  payment  made.^^  The  heirs  by  the  discharge  of  the 
mortgage,  have  an  equitable  lien  upon  the  estate,  which  they 
might  hold  against  the  widow  till  she  contributed  her  propor- 
tionate share  of  the  charge,  according  to  the  value  of  her  inter- 
ests^ It  is  held,  that  a  purchaser  of  land  at  an  administrator's 
sale,  subject  to  a  mortgage  given  by  the  intestate  and  his  wife^ 
by  which  the  wife  released  her  dower,  after  payment  of  the 
mortgage  is  not  chargeable  for  rents  and  profits  as  mortgagee 
in  possession,  in  a  contest  between  him  and  the  widow  claim- 
ing dower  in  the  equity  of  redemption.  As  respects  the  right 
of  dower,  he  would  be  chai'geable  with  nothing  until  demand 

65— Ante  625.  Selb   v.    Montague,    102    111.    446; 

66— R.  R.  Co.  V.  Curtenius,  65  III.  Montague  v.  Selb,  106  111.  49. 

120.  69 — 1   Washburn  on  Real   Prop- 

67— Simpson  v.  Ham,  78  111.  203.  erty,  2d  ed.,  186;  Cox  v.  Garst,  105 

68— Cox  V.   Garst,   105   111.   342;  111.  342. 


550  THE  LAW  OF  ESTATES. 

made  for  the  assignment  of  dower,  and  refusal.  The  right  to 
damages  for  detention  of  dower  is  incident  to  right  of  dower 
and  either  falls  or  is  allowed  with  itJ*^  And  it  is  held,  where 
the  widow  consents  to  the  sale  of  property  by  the  guardian  of 
her  children,  she  is  not  estopped  from  claiming  dower.  "^  Neither 
will  administrator's  statement  unauthorized  by  widow,  estop 
her  dower.'^2  The  administrator  of  the  widow,  where  she  dies 
before  decree  for  dower  cannot  recover  mesne  profits.  And 
such  was  held,  where  a  decree  assigning  dower  to  a  widow,  at 
her  suit  against  the  alienees  of  her  husband,  was  reversed  and 
remanded  for  further  proceedings  by  the  Supreme  Court.  The 
theoiy  of  the  decision  is  based  on  the  doctrine  that  she  must 
establish  her  right  to  dower  in  her  lifetime.  The  widow  died 
without  establishing  her  right,  and  the  damages  consequent  upon 
the  recovery  of  dower  cannot  be  assessed.  The  principal  thing 
was  extinguished  by  the  death  of  the  widow,  and  with  it  fell 
the  incident.'^^  If  the  widow  had  died  after  a  decree  for  the 
assignment  of  dower,  became  final  and  conclusive,  the  claim  of 
the  administratrix  to  mesne  profits  might,  perhaps,  be  considered 
as  within  the  equity  of  the  statute.''' * 

628.  Power  of  court.  "The  commissioners  shall,  at  all 
times,  be  subject  to  the  directions  of  the  court;  and  any  one  or 
more  of  them  may,  before  the  final  confirmation  of  the  report, 
be  removed,  and  others  appointed  in  their  stead.  "^^ 

629.  Heirs,  persons  interested,  may  petition  to  have  dower 
assigned.  "Heirs,  or,  if  under  age,  their  guardians,  or  any  other 
persons  interested  in  lands,  tenements  or  hereditaments,  may 

70 — Morrison  v.  Morrison,  11  111.         75 — Section      42,      chapter      41, 

App.  605.  "Dower."    Starr    &    Curtis    Anno- 

71 — R.   R.   Co.   V.   Curtenius,   65  tated   Statutes   of  Illinois,   Vol.  2, 

111.  120.  p.  1478;  Kurd's  R.  S.  of  111.,  1905, 

72 — Cox  V.  Garst,  105  111.  342.  p.  772.    For  fees  of  commissioners 

73 — Hitt    V.  Scammon,     82     111.  see  section  30,  chapter  53,   "Fees 

520.  and  Salaries,"  Starr  &  Curtis  An- 

74_Turney  v.  Smith,  14  111.  241.  notated    Statute    of    Illinois,    Vol. 

2,  p.  1980. 


ASSIGNMENT  OF  DOWER  AND  HOMESTEAD.  551 

also  petition  the  court  to  have  dower  assigned  to  the  person 
entitled  thereto,  which  shall  be  proceeded  in  in  the  same  manner 
as  is  prescribed  in  other  cases.  "^^  It  is  held  to  be  the  duty  of 
the  guardian  to  institute  proceedings  for  the  assignment  of 
dower  so  that  his  wards  might  obtain  their  share  of  the  rents 
and  profits  of  the  estate.  It  was  equally  his  duty,  on  the  dower 
being  assigned,  to  lease  the  portion  of  the  farm  set  apart  to  the 
heirs.  And  his  estate  is  liable  for  whatever  might  have  been 
received  by  a  faithful  discharge  of  those  duties.''^  And  it  has 
been  held,  that  a  guardian  cannot  assign  dower  pending  sale  of 
wards '  property."* 

630.  Administrator's  or  guardian's  sale^ — assignment  in,  of 
dower  or  homestead.  "Whenever  application  is  made  to  a 
county  court  for  leave  to  sell  real  estate  of  a  deceased  person 
for  the  payment  of  debts,  or  for  the  sale  of  real  estate  of  any 
ward,  as  authorized  by  law,  and  it  appears  that  there  is  a  dower 
and  homestead,  or  either,  interest  in  the  land  sought  to  be  sold, 
such  court  may  in  the  same  proceeding,  on  the  petition  of  the 
executor,  administrator,  guardian  or  conservator,  or  of  the 
person  entitled  to  dower  and  homestead,  or  either,  therein,  cause 
the  dower  and  homestead,  or  either,  to  be  assigned,  and  shall 
have  the  same  power  and  may  take  lilie  proceedings  therefor 
as  hereinbefore  provided  for  assignment  of  dower.  "'^^  All  right 
and  title   which  the  head  of  the  family  has  in  the   premises 

76 — Section      43,      chapter     41,  1,  1875.    Starr  &  Curtis  Annotated 

"Dower."     Starr  &   Curtis   Anno-  Statutes  of  Illinois,  with  Jones  <fe 

tated   Statutes  of  Illinois,  Vol.  2,  Addington's    Supplements   thereto, 

p.  1479;  Kurd's  R.  S.  of  111.,  1905,  Vol.  2,  p.   1479,  and  cases  cited; 

p.  772.  Vol.    4,   p.    448,   and   cases   cited; 

77— Clark    v.    Burnside,    15    111.  Kurd's  R.  S.  of  111.,  1905,  p.   772. 

64.  See  also  section  32,  chapter  106, 

78 — Sx  parte  Guernsey,   21   111.  entitled  "Partition."  Starr  &  Cur- 

443.  lis,   etc..   Vol.   3,  p.   2924;    Kurd's 

79 — Section      44,      chapter      41,  1905,  p.  1496.    See  section  1,  chap- 

"Dower."    As  amended  by  laws  of  ter     52,     entitled     "Exemptions." 

1875,  p.  75.  sec.  1:   In  force  July  Starr    &    Curtis,    etc.,    Vol.    2,    p. 

1865;    Kurd's  1905,  p.   1043. 


552  THE  LAW  OF  ESTATES. 

which  constitute  the  homestead,  is  exempted  from  forced  sale 
for  the  payment  of  debts,  or  other  purposes.  It  is  not  the  mere 
right  of  occupancy,  but  it  is  the  lot  or  ground  as  a  residence  that 
is  exempted.^*^  Where  the  homestead  premises  do  not  exceed 
in  value  $1,000,  there  can  be  no  valid  sale  of  the  property  itself 
on  execution  or  decree  for  the  payment  of  debts  or  other  pur- 
poses, and  this  exemption,  on  the  death  of  the  householder,  is 
continued  in  force  as  to  his  widow  and  children,  precisely  as 
held  by  him.  No  sale  can  be  rightfully  made  of  the  homestead 
by  the  administrator  of  the  deceased  householder  to  pay  his 
debts,  when  the  property  does  not  exceed  in  value  $1,000,  until 
the  exemption  in  favor  of  the  widow  and  minor  children  has 
been  in  some  mode  terminated;  and  if  such  sale  is  made,  a 
court  of  equity  has  the  power  to  set  the  same  aside  at  the 
instance  of  the  homestead  occupant.  The  homestead,  when  not 
exceeding  $1,000  in  value,  cannot  even  be  sold  subject  to  the 
homestead  right.^^  "Where  the  homestead  exceeds  $1,000  in 
value,  the  statute  directs  how  a  sale  of  the  property  may  be 
made.82  Ji  enacts  that  the  waiver  shall,  to  be  operative,  be  in 
writing,  subscribed  by  the  householder  and  his  or  her  wife  or 
husband,  if  he  or  she  have  one,  and  acknowledged,  etc.,  or  pos- 
session abandoned  or  given  pursuant  to  the  conveyance,  "or  if 
the  exemption  is  continued  to  the  childi-en,  no  waiver  or  release 
shall  be  valid  without  the  order  of  court  directing  a  release 
thereof.  "83  And  if  the  sale  is  made  in  violation  of  the  provi- 
sions of  the  statute  equity  will  set  such  sale  aside.*'*     A  bill  for 


80 — Hartwell     v.  McDonald,     69  pp.  1874,     188fi,  1883,     and     cases 

111.  293;   Hartman  v.  Schultz,  101  cited;  Kurd's  R.  S.  of  111.,  1905,  p. 

111.  437.  1044.    See  also  sections  10  and  11, 

81 — Hartman  v.  Schultz,  101  111.  chapter  52,  "Exemptions."     Starr 

437;    Wolf  V.   Ogden,  66   111.  224;  &  Curtis  Annotated  Statutes,  Vol. 

Bursen  v.   Goodspeed,   60  111.  277.  2,  p.  1885,  and  cases  cited  under 

82 — Section  4,  chapter  52,  "Ex-  sections  of  statute.    See  also  King- 

emptions."  man     v.  Higgins,     100     111.     319; 

83— Sections    6,    7,    chapter    52,  Hotchkiss  v.  Brooks,  93  111.   392; 

"Exemptions."  Starr  &  Curtis  An-  Merritt  v.  Merritt,  97  111.  249. 
notated  Statutes  of  Illinois,  Vol.  2,         84 — Conklin    v.    Foster,    57    111. 


ASSIGNMENT  OF  DOWER  AND   HOMESTEAD.  553 

partition  which  declares  that  A.  B.  has  a  right  of  dower  in  all 
the  lands,  does  not  authorize  the  court  to  decree  a  sale  of  the 
lands,  and  that  the  dower  shall  be  extinguished  by  the  payment 
of  a  gross  sum.  The  order  of  sale  should  protect  the  dowress, 
by  directing  the  sale  subject  to  her  rights.  A  widow,  under  the 
statute,  cannot  be  deprived  of  her  dower,  except  by  her  own 
acts.  If  a  widow  applies  for  an  assignment  of  dower,  and  this 
cannot  be  done  without  prejudice  to  the  estate,  a  jury  shall  fix 
the  annual  value  of  the  dower,  and  the  court  shall  then  direct 
how  this  value  should  be  annually  paid.^'^ 

631.  Waste  by  person  endowed.  "No  person  who  is  en- 
dowed of  any  lands  shall  commit  or  suffer  any  waste  thereon 
on  penalty  of  forfeiting  that  part  of  the  estate  whereupon  such 
waste  is  made  to  him  or  them  that  have  the  immediate  estate  of 
freehold  or  inheritance  in  remainder  or  reversion,  but  every 
person  so  endowed  shall  maintain  the  houses  and  tenements, 
with  the  fences  and  appurtenances,  in  good  repair,  and  shall  be 
liable  to  the  person  having  the  next  immediate  estate  of  in- 
heritance therein  for  all  damage  occasioned  by  any  waste  com- 
mitted or  suffered  by  him  or  her.''^^ 

632.  Representative  conveying  land  by  order  of  court  does 
not  lose  dower.  "No  person  who  sells  and  conveys  land  by 
order  of  court  for  the  payment  of  debts  shall  be  deemed  to  have 
relinquished,  by  reason  of  such  conveyance,  any  right  of  dower 

104;   Hartman  v.  Schultz,  101  111.  85 — Francisco  v.    Hendricks,    28 

437;  Lewis  v.  McGraw.  19  111.  App.  111.  64;  Tibbs  v.  Allen,  27  111.  119. 

313.    For  a  proceeding  where  land  86 — Section      45,      chapter     41, 

was  sold  to  pay  debts,  and  dower  "Dower."     R.  S.  1845,  p.  202,  sec. 

and  homestead  set  off  by  decree  of  30,  rewritten  and  extended  to  hus- 

the  county  court,  having   probate  band.     Starr  &   Curtis  Annotated 

jurisdiction,     see     the     following  Statutes  of  Illinois,  with  Jones  & 

cases:  Oettinger  v.  Specht,  162  111.  Addington's   Supplements    thereto, 

182,  and  cases  cited;   Jones  v.  Gil-  Vol.   2,  p.   1479,   and   cases   cited; 

bert,  135  111.  27;  Kenley  v.  Bryan,  Vol.    4,    p.    448,    and    cases   cited; 

110  111.  652;  Hartman  v.  Schultz,  Hurd's  R.  S.  of  111.,  1905,  p.  772. 
101  111.  437. 


554 


THE  LAW  OP  ESTATES. 


which  he  or  she  may  have  in  such'  lands,  unless  his  or  her 
relinquishment  is  specified  in  the  deed  of  conveyance.  "^^ 


87 — Section  46,  chapter  41, 
"Dower."  In  lieu  of  R.  S.  1845,  p. 
203,  sec.  34,  Starr  &  Curtis  Anno- 
tated Statutes  of  Illinois,  Vol.  2, 
p.  1479;  Kurd's  R.  S.  of  111.,  1905, 
p.  773.  See  also  section  47  of 
"Dower  Act."  Starr  &  Curtis,  etc.. 
Vol.  2,  p.  1480;  Kurd's  1905  stat- 
ute, p.  773. 

Dower  right  is  barred,  however, 
by  a  decree  entered  with  the  wid- 
ow's consent  and  failure  to  re- 
nounce under  the  will  bars  dower. 


Cox  V.  Lynn,  138  111.  195.  See  also 
Warren  v.  Warren,  148  111.  641; 
Carper  v.  Crowl,  149  111.  465; 
Stookey  v.  Stookey,  89  111.  40. 
Dower  was  held  barred  by  decree 
on  arbitrator's  award  to  a  di- 
vorced wife.  Marvin  v.  Collins, 
48  111.  156,  See  also  Stow  v. 
Steele,  114  111.  382.  Insanity  of 
wife  is  no  ground,  in  equity,  for 
depriving  such  of  her  right  to 
dower.  Ex  parte  McElwain,  29  111. 
442. 


CHAPTER   XXXV 


DOWER,  JOINTURE,  ADVANCEMENTS 


Sec. 

633.  Dower  generally. 

634.  Dower    right    subject   to   lien 

and  incumbrance. 

635.  Effect  of  conveyance  by  either 

party  on  eve  of  marriage. 

636.  Jointure  bars  dower. 

637.  Purchase  of  land  by  husband 

in  name  of  wife  prima  facie 
presumed  to  be  an  advance- 
ment or  settlement. 

638.  Provision  in  will  bars  dower, 

election,  renunciation. 


Sec. 

639.  Renunciation  must  be  within 

year  after  letters. 

640.  Testate  estate  and  no  descend- 

ant,   election,     in    lieu    of 
dower. 

641.  Divorce,  effect  of. 
G42.  Adultery,  effect  of. 

643.  Judgment,   conveyance,  laches, 

crime,    not    to    bar    other's 
dower. 

644.  Exchange   of   land,   dower  in. 

645.  Property  acquired   after  will. 


Sec.  633.  Dower  generally.  Since  the  legislature  of  the 
State  of  Illinois,  conferred  extended  power  and  jurisdiction  on 
courts  of  probate  in  matters  relating  to  the  sale  of  real  estate 
to  pay  debts,  in  1887,  all  persons  holding  liens  against  the  real 
estate  or  any  part  thereof,  sought  to  be  sold  to  pay  debts,  by 
any  executor  or  administrator,  and  all  persons  having  or  claim- 
ing any  interest  in  such  real  estate  or  any  part  thereof,  in  pos- 
session or  otherwise,  made  parties  to  such  proceeding,  the  pro- 
bate court  may  adjust  and  settle  all  equities,  and  all  questions 
of  priority,  between  all  parties  interested,  as  well  as  investigate 
and  determine  all  questions  of  conflicting  or  controverted  titles, 
that  may  arise  between  any  of  the  parties  to  such  proceeding, 
remove  clouds  from  any  real  estate  sought  to  be  sold,  so  as  to 
invest  the  purchaser  with  a  good  an  indefeasible  title  to  the 
premises  sold.^  And  in  the  manner  pointed  out  by  such  statute, 
adjust  homestead  and  dower  rights  of  the  husband  or  wife.^ 


1—Ante,  582,  627. 


2— Jones  v.  Gilbert,  135  111.  127; 
Oettinger  v.  Specht,  162  111.  p.  184. 


555 


556  THE  LAW  OF  ESTATES. 

And  where  the  county  court,  found  and  decreed,  that  it  would 
be  necessary  to  sell  the  whole  of  the  real  estate,  subject  to  the 
homestead  and  dower  rights  of  the  widow,  it  was  held:  The 
result  accomplished  by  the  final  decree,  was,  that  the  home- 
stead estate  of  the  widow  contributed  to  her  dower,  that  part 
of  the  dower  which  was  represented  in  the  homestead  being  in 
abeyance  until  the  homestead  estate  should  be  extinguished.-'^ 
Under  this  enlarged  statute,  it  is  held:  the  court  of  probate 
has  jurisdiction  and  power  to  order  the  sale  of  real  estate  to 
pay  debts,  notwithstanding  it  may  be  subject  to  a  life  estate  of 
dower  or  incumbered  by  a  right  of  dower.  But  where  the  home- 
stead premises  do  not  exceed  in  value  the  smn  of  $1,000,  they 
cannot  be  sold  to  pay  debts  by  the  administrator  of  a  deceased 
householder  until  after  the  termination  of  the  exemption  in 
favor  of  the  widow  and  children.**  At  the  common  law,  dower 
is  the  third  part  of  all  the  lands,  whereof  the  husband  has  been 
seized  at  any  time  during  the  coverture,  of  such  an  estate  as  the 
children  by  the  wife  might  by  possibility  have  inherited,  and 
to  which  by  the  death  of  the  husband,  such  wife  is  entitled  for 
her  life.  To  the  consummation  of  dower,  three  things  are  neces- 
sary, to-wit:  marriage,  seizin  and  the  death  of  the  husband. 
Until  his  death,  it  is  only  an  interest  which  attaches  to  the  land 
by  reason  of  the  marriage  and  seizin.  The  estate  of  curtsy 
under  the  common  law  in  the  husband,  is  by  statute  in  Illinois 
abolished;  in  the  matter  of  dower,  the  statute  of  tliis  State 
places  the  surviving  husband  or  wife  on  the  same  common  level  j 
the  right  of  the  surviving  husband  or  wife  to  dower  being  the 
same.^  The  dower  of  the  wife  or  husband  is  not  defeated  by 
sale  on  judgment  and  execution  against  the  husband  or  wife 
separately.^     Dower  may  be  barred  by  the  assent  or  miscon- 

3 — Kenley  v.  Bryan,  110  111.  652;  6 — See  section  5,  chapter  68,  en- 

Oettinger  v.  Specht,  162  111.  p.  184.  titled  "Husband  and  Wife."  Starr 

4 — Hartman  v.  Schultz,  101  111.  &  Curtis  Annotated  Statutes  of  II- 

437.  linois,   Vol.    2,  p.    2120,   and    cases 

5 — See  Section  1,  chapter  41  en-  cited;  Hurd's  R.  S.  of  111.,  1905,  p. 

titled  dower  statute  at  large  given  1146;  Stone  v.  Steele,  114  111.  382.  • 
Ante  627. 


DOWER.   JOINTURE,    ADVANCEMENTS.  557 

duct  of  either  the  husband  or  wife;  or  where  the  marriage  was 
void  ab  initio;  or  for  some  statutory  misconduct  on  the  part  of 
either,'''  Dower  in  Illinois  is  a  common  law,  not  a  statutory 
right,  though  recognized  and  extended  by  statute  beyond  the 
limits  of  the  common  law ;  and  the  insolvency  of  the  husband 's 
estate  does  not  affect  the  wife's  right  of  dower  or  vice  versa.'* 
Provision  for  dower  in  equitable  estates  refer  to  equitable  estates 
of  inheritance  only.^  Dower  attaches  to  surplus  after  sale  of 
mortgaged  lands ;  but  not  if  sale  was  made  during  the  husband 's 
life.^o  If  the  deceased  had  lands  under  a  contract  of  purchase, 
and  before  payment  of  the  purchase  money,  his  rights  are  trans- 
ferred, no  right  of  dower  attaches.^^  Where  property  is  con- 
demned widow  is  entitled  to  dower  in  deceased  husband's  estate 
in  such  property  from  compensation  received  by  heirs.^^  ^^(j 
in  accretions  to  riparian  property  dower  attaches.^ -"^  Widow  is 
dowable  of  wild  and  unproductive  lands,^*  and  in  mines  opened 
during  husband's  life;  but  not  in  unopened  mines.^^  Dower 
does  not  attach  to  lands  held  in  trust  by  deceased  husband.^  ^ 
Dower  unassigned  cannot  be  released  or  conveyed  except  to  the 
owner  of  the  fee;  this  is  the  well  established  policy  of  the  law,^'^ 

7— See  sections  14,  15,  16,  chap-  Thorsell,  78  111.  600;   Clybourn  v. 

ter   41,  "Dower."     Post,   641,    642,  Pitts.  Ft.  Wayne  R.  R.,  4  111.  App. 

643,  for  statute  at  large.  463 ;    Frederick  v.   Emig,    186    111. 

8— See    statute   cited    note    (6).  322. 

Lick  V,  Smith,  6  111.   (Gill)   503.  12— Bonner  v.   Peterson,   44   111. 

9 — Davenport   v.    Farrar,    2    111.  253. 

(1  Scam.)  314;  Nicoll  v.  Todd,  70  13— Gale  v.  Kinzie,   80  lU.  132; 

111.  295;    Atkins  v.  Merrell,  39  111.  Lombard  v.    Kinzie,  73    111.   446. 

62;    Allen   v.   Allen,   112   111.   323;  14— Schnebly  v.  Schnebly,  26  111. 

Sues  V.  Leinour,  16  111.  App.  603;  116. 

section    1,    chapter    41,    "Dower."  15— Lenfers    v.    Henke,    73    III. 

Vol.    2,    p.    1456,    Starr   &    Curtis  405. 

Annotated  Statutes  of  Illinois.  16— Gritten  v.  Dickerson,  202  111. 

10 — Kaufman    v.    Peacock,    115  379. 

111.  212;   Virgin  v.  Virgin.  189  111.  17— See   section   18,   chapter  30, 

150;  Noffts  V.  Koss,  29  111.  301.  "Conveyance  Act."    Starr  &  Curtis 

11 — Atkins  V.  Merrell,  39  111.  62;  Annotated  Statutes  of  Illinois,  Vol. 

Stow  V.  Steel.  45  111.  328;  "Owen  v.  1,  p.  916;  Kurd's  R.  S.  of  111.,  1905. 

Robbins,  19  111.  545;  Greenbaum  v.  p.   466;    Sloniger  v.    Sloniger.   161 

Austrian,    70    111.    591;    Morse   v.  111.  279;   Bank  v.  White,  159  111. 


558  THE  LAW  OF  ESTATES. 

Proceedings  for  assignment  of  dower  involve  a  freehold  and  in 
such  case  appeal  lies  direct  to  the  Supreme  Court.^^ 

634.    Dower  right  subject  to  lien  and  incumbrance.     The 

surviving  husband  or  wife  of  an  alien  in  this  State  is  entitled 
to  dower,  the  same  as  if  such  alien  had  been  a  native  born  citizen 
of  the  United  States.^^  Before  dower  attaches,  as  a  general 
rule,  every  lien  and  incumbrance  existing  in  law  or  equity  is 
prior  thereto.2o  At  common  law  when  the  husband  had  executed 
a  mortgage  before  marriage,  the  widow  was  not  dowable  in 
the  equity  of  redemption.  But  under  section  5  of  the  Dower 
Act,  it  is  provided:  That  where  the  mortgagee  of  lands  mort- 
gaged by  a  husband  prior  to  his  marriage  shall  cause  the  lands 
to  be  sold  the  mortgagor's  widow,  shall  have  dower  in  the  sur- 
plus of  the  proceeds  after  satisfying  the  mortgage  debt  and 
costs,2i  applies  where  such  lands  are  sold  to  pay  debts  under 
an  order  of  court,  obtained  by  the  mortgagor's  administrator  in 
a  proceeding  wherein  all  the  mortgagees  were  parties,  and  their 
rights  as  lien  holders  were  insisted  upon  by  them  and  established 
and  protected  by  the  decree.  In  Illinois  a  wife  who  joins  in  the 
execution  of  a  mortgage  relinquishes  her  dower  right  so  far  as 
is  necessary  to  satisfy  the  lien  of  the  mortgage,  her  inchoate 

147;    Lewis  v.  King,  180  111.  266;  18— McManaman     v.   Blocks,   15 

Farrand  v.  Long,  184  111.  109.     In  111.  App.  476. 

the  latter  case  it  is  held:     A  deed  19 — Section       2,     chapter       41, 

to    the    mortgagee    by    one    mort-  "Dower  Act."     Starr  &  Curtis  An- 

gagor  after  the  death  of  the  other  notated    Statutes   of   Illinois,   Vol. 

does  not  pass  the  grantor's  dower  2,   p.    1462,    Kurd's   R.    S.    of   111., 

right  in  the  deceased  mortgagor's  1905,  p.  768. 

undivided  one-half  interest  in  the  20 — Daniher  v.  Daniher,  201  111. 

property,  where  the  deed  was  in-  495;    10  Am.  &  Eng.  Ency.  of  Law, 

tended  merely  as  a  change  in  the  2d  ed.  169,  170;   Virgin  v.  Virgin, 

mortgagee's  security,  and  was  exe-  189  111.  151;  1  Scribner  on  Dower, 

cuted  by  the  grantor  in  the  belief  chapt.  28,  sec.  15;  Schope  v.  Schaff- 

that    he    was    sole    owner    of    the  ner,    140   111.    470. 

property,  and  hence  in  ignorance  21 — Section      5,        chapter      41, 

of    his     dower    rights.     See    also  "Dower  Act."     Starr  &  Curtis  An- 

Campbell  v.   Trotter,   100  111.   281,  notated    Statutes    of    Illinois,   Vol. 

284;   Lowman  v.  Lowman,  118  111.  2,  p.  1463,  and  cases  cited;   Kurd's 

582.  R.  S.  of  111.,  1905,  p.  766. 


DOWER,   JOINTURE,    ADVANCEMENTS.  559 

right  of  dower  becomes  consummate  only  in  the  excess  of  the 
proceeds  of  the  sale.  Where  a  wife  joins  in  a  mortgage  and 
the  lands  are  sold,  after  the  husband's  death,  to  satisfy  the 
mortgage,  the  fact  that  those  who  succeed  to  the  husband's  fee 
title  redeem  the  land  does  not  discharge  the  mortgage  lien  as 
to  the  dower,  but  the  dowress  must  refund  to  the  parties  mak- 
ing redemption  her  proportionate  share  of  the  amount  required 
to  redeem,  according  to  the  dower  interest,  and  a  lien  attaches 
in  equity  against  such  dower  interest  in  favor  of  the  person 
who  redeems  the  land.--  When  a  man  mortgages  his  land  and 
after  doing  so  marries,  his  wife  will  be  entitled  to  dower  out 
of  the  lands  mortgaged,  as  against  every  person,  except  the 
mortgagee  and  those  claiming  under  him.^^  But  dower  does  not 
attach  in  favor  of  second  husband,  where  wife's  twenty -year 
adverse  possession  was  a  continuation  of  first  husband's  tenure.^^ 
It  was  also  held,  in  view  of  section  8  of  the  act  entitled  "Hus- 
band and  wife, ' '  chapter  68 :  declaring  that  neither  a  husband 
or  wife  is  entitled  to  receive  compensation  for  services  rendered 
in  the  management  of  the  other's  property,  a  husband  acquired 
no  interest  in  the  land  of  his  wife  from  the  fact  that  he  has 
performed  labor  upon  it.^^  And  so  it  is  held,  where  a  wife  who 
joins  with  her  husband  in  the  execution  of  a  mortgage  on  his 
land  is  entitled,  as  against  his  unsecured  creditors,  to  have 
dower  out  of  the  entire  proceeds  of  the  land  paid  to  her  out 
of  the  surplus  after  paying  the  mortgagees 

22— Virgin     v.  Virgin,     189     111.  1905,  p.   768;    Shope  v.   Schaffner, 

151;    Burson  v.  Dow,   65   111.   147;  140  111.  470. 

Greenbaum     v.  Austrian,     70     111.  24 — Beuter  v.  Struckart,  181  111. 

591;    Selb    v.    Montague,    102    111.  543. 

446;   Cox  v.  Garst,  105  III.  342.  25— Beuter  v.  Struckart,  181  111. 

23— Sections  3,  4,  5,  Chapter  41,  543. 

"Dower  Act."     Starr  &  Curtis  An-  26 — Section  8,  chapter  68,  "Hus- 

notated   Statutes  of   Illinois,  with  band  and  Wife."     Starr  &  Curtis 

Jones  &  Addington's   Supplements  Annotated  Statutes  of  Illinois,  Vol. 

thereto.  Vol.  2,  pp.  1462,  1463,  and  2,  p.  2125,  and  cases  cited;  Kurd's 

cases   cited;    Vol.    4,    p.    446,    and  R.  S.  of  111.,  1905,  p.  1147;  People 

cases   cited;    Vol.    5,    p.    180,    and  v.  Stett,  7  111.  App.  294;  10  Am.  & 

cases  cited;    Kurd's  R,  S.  of  111.,  Eng.  Ency.  of  Law,  2d  ed.  170,  and 


560 


THE  LAW  OF  ESTATES. 


635,  Effect  of  conveyance  by  either  party  on  eve  of  mar- 
riage. The  weight  of  authority  is,  that  a  voluntary  convey- 
ance by  either  party  to  a  marriage  contract,  of  his  or  her  real 
property,  made  without  the  knowledge  of  the  other  and  on  the 
eve  of  the  marriage,  is  a  fraud  upon  the  marital  rights  of  such 
other,  and  such  conveyance  will  be  treated  as  fraudulent  and 
void  as  against  the  party  surprised,  and  his  or  her  marital  rights 
in  the  land  so  conveyed  will  not  be  affected  thereby.^^  A  con- 
veyance upon  the  eve  of  marriage,  to  be  regarded  as  a  fraud 
upon  the  legal  rights  of  the  intended  wife,  must  be  made  with- 
out her  consent  or  knowledge.^s  The  rule,  however,  is  not  abso- 
lute. It  does  not  entitle  the  wife  to  treat  every  conveyance  made 
by  her  husband  secretly  on  the  eve  of  marriage  as  a  fraud  on 
her  rights.     It  may  be  the  husband's  duty  to  make  it.^^     The 


cases  cited  in  notes;  "Virgin  v. 
Virgin,   189   111.   151. 

27 — 1  Scribner  on  Dower,  chapt. 
28,  sec.  10;  Perry  on  Trusts,  sec. 
213;  Freeman  v.  Hartman,  45  111. 
57;  Clark  v.  Clark,  183  111.  448; 
Daniher  v.  Daniher,  201  111.  494; 
Babcock  v.  Babcock,  53  How.  Pr. 
97;  Pomeroy  v.  Pomeroy,  54  How. 
Pr.  228;  Youngs  v.  Carter,  10  Hun, 
194;  Petty  v.  Petty,  4  B.  Mon.  215; 
Leach  v.  Duval,  8  Bush.  201;  Lit- 
tleton V.  Littleton,  1  Dev.  &  B. 
327;  Cranson  v.  Cranson,  4  Mich. 
230;  Brown  v.  Brownson,  35  Mich. 
415;  Jones  v.  Jones,  64  Wis.  301; 
Thayer  v.  Thayer,  14  Vt.  107; 
Ward  V.  Ward,  63  Ohio  St.  125; 
Butler  V.   Butler,   21  Kan.  521. 

28— Clark  v.  Clark,  183  111.  448; 
see  Ward  v.  Ward,  63  Ohio  St. 
125,  where  it  is  held:  That  the  pur- 
pose to  deceive  and  defraud  the 
other  prospective  spouse  is  im- 
puted to  the  one  who  makes  the 
attempted  transfer,  and  conceals 
the  fact  till  after  marriage,  and 
that    it    makes    no    difference    in 


principle,  whether  actual  fraud 
was  intended  or  not.  And  to  the 
same  effect  see  In  Arnegaard  v. 
Arnegaard,  7  N.  Dak.  475,  where 
any  such  voluntary  conveyance  is 
made  without  the  knowledge  of 
the  other  of  such  contracting 
parties  it  presents  a  prima  facie 
case  of  fraud,  subject  to  be  ex- 
plained by  the  parties  interested, 
and  the  burden  is  on  the  grantee 
to  establish  the  validity  of  the 
deed.  Fennessey  v.  Fennessey,  84 
Ky.  519;  Hamilton  v.  Smith,  57 
Iowa  15;  Champlin  v.  Champlin, 
16  R.  I.  314. 

29— Daniher  v.  Daniher,  201  111. 
494.  In  this  case,  the  court  speak- 
ing of  the  rule  (cited  in  note  28) 
hold:  Not  every  voluntary  con- 
veyance is  in  fraud  of  the  rights 
of  the  intended  spouse.  Where 
the  intention  is  to  provide  for  the 
children,  and  not  to  defraud  the 
wife  or  husband,  and  the  advance- 
ment is  reasonable,  when  consid- 
ered with  reference  to  the  property 
of  the  grantor,  it  will  not  be  held 


DOWER,   JOINTURE,    ADVANCEMENTS.  561 

ease  cited  makes  such  conveyance  prima  facie  fraudulent  upon 
the  dower  rights  of  each  other,  and  puts  the  burden  upon  the 
grantee  to  establish  its  validity .^^ 

636.  Jointure  bars  dower.  ''When  an  estate  in  land  shall 
be  conveyed  to  an  intended  husband  and  wife,  or  to  either  of 
them,  or  to  any  person  in  trust  for  such  intended  husband  and 
wife,  or  either  of  them,  for  the  purpose  of  creating  a  jointure 
in  favor  of  either  of  them  with  his  or  her  consent,  to  be  taken 
in  lieu  of  dower,  such  jointure  shall  bar  any  right  or  claim  for 
dower  by  the  party  jointured  in  any  lands  of  the  other,  "^i  This 
statute  does  not  bar  surviving  wife's  or  husband's  rights  as  heir 
of  either  of  such  who  may  be  deceased.^^  Jointure  must  be 
by  conveyance  of  property;  ante-nuptial  contract  does  not 
create  jointure.^^  But  any  reasonable  provision,  accepted  by 
any  adult  person  in  lieu  of  dower,  is  an  equitable  jointure,  and 
bars  dower,  under  such  contract.^^  And  it  is  held  in  the 
case  of  Barth  v.  Lines  :^^  That  this  section  of  the  statute 
cannot  be  said  to  deprive  a  widow  of  the  power  to  bar  her 
right  to  dower  by  any  other  form  of  ante-nuptial  contract. 
But  in  the  following  case  it  is  held,  that  both  the  widow's  award 
and  dower  may  be  barred  by  an  ante-nuptial  contract,  where 
such  is  expressed  as  the  condition  of  the  same.^®  At  the  corn- 
fraudulent.  And  see  in  support  of  v.  Firestone,  2  Ohio  St.  415;  Old- 
this  doctrine  Fennessey  v.  Fen-  ham  v.  Sale,  1  B,  Mon.  76;  Beck- 
nessey,  84  Ky.  519;  Baker  v.  with  v.  Beckwith,  61  Mich.  315. 
Chase,  6  Hill,  482;  Mcintosh  v.  31— Section  7,  chapter  41, 
Ladd,  1  Hump.  459;  Richards  v.  "Dower  Act."  Starr  &  Curtis  An- 
Richards,  11  Hump.  429;  Miller  v.  notated  Statutes  of  Illinois,  Vol. 
Wilson,  15  Ohio  108;  Littleton  v.  2,  p.  1463,  and  cases  cited;  Kurd's 
Littleton,  1  Dev.  &  B.  327;  Gaines  R.  S.  of  111.,  1905,  p.  769. 
V.  Gaines,  9  B.  Mon.  295;  Clark  32 — Sutherland  y.  Sutherland, 
V.  Clark,  183  111.  448.  69  111.  481. 

30— Daniher  v.  Daniher,  201  111.         33— McGee    v.    McGee,    91    111. 
495;  see  supporting  this  exception     548. 

to  the  general  rule.     Chapman  v.         34 — McGee  v.  McGee,  91  111.  548. 
Chapman,  92  Va.  537;   Burdine  v.         3.5—118  111.  374. 
Burdine,  98  Va.  515;   Champlin  v.         36 — Spencer    v.    Boardman,    118 
Champlin,  16  R.  I.  314;  Firestone     111.  553. 

36 


562  THE  LAW  OF-  ESTATES. 

mon  law  a  legal  jointure  settled  upon  a  wife  before  marriage,  if 
fairly  entered  into,  would  bar  her  dower,  but  a  jointure  settled 
upon  her  after  marriage  only  had  the  effect  to  put  her  to  her 
election,  after  the  death  of  her  husband,  either  to  accept  the 
settlement  or  to  demand  dower.^^  Marriage  of  the  parties  to 
an  ante-nuptial  contract,  coupled  with  the  mutual  covenants 
of  the  parties  waiving  and  releasing  the  right  of  each  in  the 
property  of  the  other,  is  sufficient  consideration  for  the  con- 
tract; and  such  a  contract  is  not  against  public  policy.^s  But 
if  the  provisions  for  the  intended  wife  in  an  ante-nuptial  con- 
tract are  disproportionate  to  the  means  of  the  intended  husband, 
the  husband  and  those  claiming  under  him  have  the  burden  of 
proving  that  the  intended  wife,  at  the  time  she  executed  the 
contract,  had  full  knowledge,  or  reasonable  means  of  knowing, 
the  nature,  character  and  value  of  the  intended  husband's  prop- 
erty, and  this  knowledge  must  be  brought  directly  to  the  in- 
tended wife  in  order  to  bind  her  under  such  contract.^^  And 
such  right  of  election  is  recognized  and  retained  by  section  9  of 
the  Dower  Act,  which  is  as  follows:  *'If  before  marriage,  but 
without  such  assent,  or  if  after  marriage,  land  shall  be  given  or 
assured  for  the  jointure  of  a  wife  or  husband  in  lieu  of  dower, 
such  wife  or  husband  may  elect  whether  to  take  such  jointure, 
or  to  be  endowed  as  herein  provided,  but  shall  not  be  entitled  to 
both."'**'  And  it  is  held  in  Heiser  v.  Sutter, "^^  that  B.  S.,  upon 
the  death  of  her  husband,  was  bound  by  said  post-nuptial  set- 
tlement, unless  she  elected,  in  lieu  thereof,  to  take  dower  in  her 
husband's  real  estate.  She  was  not  entitled  to  retain  the  prop- 
erty which  she  received  under  said  settlement  and  at  the  same 
time  recover  her  dower.     She  is  not  entitled  to  both,  but  must 

37—11    Am.    &    Eng.    Ency.    of         40— Section        9,      chapter      41, 

Law,  2d  ed.  p.  92,  and  cases  cited  "Dower  Act."  Starr  &  Curtis  An- 

in  notes.  notated    Statutes   of   Illinois,   Vol. 

38— Kroell    v.    Kroell,    219    111.  2,   p.   1464;    Kurd's  R.    S.    of  111., 

105.  1905,  p.  769. 

39— Murdock    v.    Murdock,    219         41—195    111.   p.    382;    Heiser   v. 

111.  123;  see  also  Yarde  v.  Yarde,  Sutter. 
187  111.  636. 


DOWER,   JOINTURE,    ADVANCEMENTS.  563 

elect  to  retain  the  property  received  by  virtue  of  the  settlement 
or  return  the  same  and  recover  dower. 

637.  Purchase  of  land  by  husband  in  name  of  wife  prima 
facie  presumed  to  be  an  advancement  or  settlement.  The  gen- 
eral rule  is,  that  where  the  purchase  money  of  land  is  paid  by 
one  person  and  the  title  is  taken  in  the  name  of  a  third  party, 
there  such  third  party  holds  the  title  in  trust  for  him  who  pays 
the  purchase  money.  But  the  purchase  of  land  by  a  parent 
in  the  name  of  a  child,  or  by  a  husband  in  the  name  of  his  wife, 
will,  prima  facie,  be  presumed  to  be  an  advancement  or  settle- 
ment, and  not  a  trust.  This  latter  presumption  may  be  either 
supported  or  rebutted  by  proof  of  antecedent  or  contemporane- 
ous acts  or  facts,  or  by  proof  of  any  acts  or  facts  so  soon  after 
the  purchase  as  to  be  fairly  considered  a  part  of  the  trans- 
action.42  ^y^  advancement  cannot  be  established  by  parol  evi- 
dence, but,  on  the  contrary,  ''the  gift  or  grant  must  be  expressed 
in  writing  as  an  advancement,  or  charged  in  writing  by  the 
intestate,  or  acknowledged  in  writing"  by  the  donee  or 
grantee.'*^  An  advancement  which  is  not  evidenced  in  the  man- 
ner required  by  the  statute,  is,  in  legal  effect,  no  advancement  at 
all,  however  clearly  it  may  appear  it  was  so  intended.  The  mere 
making  and  delivery  of  a  quit  claim  deed  by  a  person  to  his  grand- 
father, as  to  the  lands  of  the  latter,  afford  no  evidence  of  an 
intention  on  the  part  of  the  grantor  to  release  an  expected  in- 
heritance. And  so  it  is  held,  that  under  such  a  state  of  facts,  a 
contract  of  a  prospective  heir  with  his  ancestor,  to  take  prop- 
erty conveyed  to  him,  in  full  of  his  share  in  the  grantor's  estate, 
as  heir,  is  insufficient  to  show  such  agreement.^*  "Where  a 
father  executes  a  deed  for  a  tract  of  land  to  one  child,  who 

42— Maxwell    v.    Maxwell,     109  157  111.  33;   Fry  v.  Morrison,  159 

111.    588;    Cartwright   v.   Wise,    14  111.  244. 

111.  417;    Taylor  v.  Taylor,  4  Gilm.  43— See  Sec.  7,  chapter  39,  "De- 

(111.)    303;    10  Am.  &  Eng.  Ency.  scent."     Chapter  III  of  this  work 

of  Law,  2d  ed.,  pp.  18,  19  and  au-  Ante  66.    Pry  v.  Morrison,  159  111. 

thorities  cited  in  notes;   Duval  v.  244. 

Duval,  153  111.  49;  Goelz  v.  Goelz,  44— Long  v.  Long,  118  111.  638; 

Galbraith  v.   McLain,   84   III.   379. 


564  THE  LAW  OF  ESTATES. 

accepts  and  takes  possession  of  the  same,  upon  the  express  un- 
derstanding and  agreement  that  it  is  in  lieu  of  all  claim  such 
child  may  have  in  and  to  the  residue  of  the  father's  estate  upon 
his  death,  and  that  such  child  will  release  to  the  other  children, 
all  his  claim  in  expectancy  to  the  residue  of  the  estate,  such 
contract  is  legal  and  binding,  and  will  be  enforced  in  equity. 
And  such  agreement  may  be  established  by  parol  evidence,*^ 
Payment  by  one  acting  as  executor,  to  the  widow,  of  a  sum 
specified  in  an  ante-nuptial  contract  as  in  lieu  of  her  claims  on 
the  estate,  in  accordance  with  the  testator's  directions  in  his  will, 
is  held  to  be  valid,  even  though  the  probate  of  the  will  should 
be  afterward  set  aside  and  the  will  annulled,  as  the  act  is  one 
which  any  executor  or  administrator  would  be  required  to  do  in 
due  course  of  administration.*''  A  will  is  regarded  as  a  convey- 
ance to  take  effect  in  future.  The  laws  of  descent  operate  with- 
out any  agency  of  man,  while  the  law  of  wills  is  wholly  the 
agency  of  man.*^ 

638.    Provisions  in  will  bars  dower — election — renunciation. 

*'Any  devise  of  land,  or  estate  therein,  or  any  other  provision 
made  by  the  will  of  a  deceased  husband  or  wife  for  a  surviving 

45 — Galbraith  v.  McLain,  84  111.  under        whom        both        parties 

379.  claim,  unaccompanied  by  any  act 

46 — Hundall  v.  Ham,  172  111.  76.  showing  what  disposition  he  made 
An  agreement  to  make  or  not  to  or  intended  to  make  of  his  estate, 
make  a  certain  disposition  of  are  not  evidence.  Chadwick  v. 
property,  by  will  or  otherwise,  Webber,  3  Greenlf.  141;  Hatch  v. 
may  be  specifically  enforced  in  Straight,  3  Conn.  31;  Bulkeley  v. 
equity  if  based  upon  a  valuable  Noble,  2  Pick.  337;  Hayne  v.  Rut- 
consideration.  Green  v.  Broyles,  ter,  24  Pick.  242;  Ladd  v.  Abd,  18 
3  Humph.  167;  Maddox  v.  Rowe,  Conn.  513;  1  Greenleaf  on  Evi- 
23  Ga.  431;  Frisby  v.  Parkhurst,  dence,  sec.  110;  Starkie  on  Evi- 
29  Md.  58;  Gupton  v.  Gupton,  47  dence.  Note  1,  p.  88;  Morse  v. 
Mo.  37;  Carmichael  v.  Carmichael,  Thorsell,  78  111.  600,  and  cases 
72  Mich.  76;    Ballman  v.  Overall,  cited. 

80  Ala.  451;  Taylor  v.  Mitchel,  87        All     agreements     by     expectant 

Pa.    St.   518;    Sharkey   v.   McDer-  heirs    in    regard  to    their    future 

mott,  91  Mo.  647;  Wright  v.  Tins-  contingent    estates,    when    fairly 

ley,  30  Mo.  389;  Manning  v.  Pip-  made,  will  be  enforced  in  equity, 

pin,  80  Ala.  357.  Parsons  v.  Ely,  45  111.  232;    Long 

47—2     Blackstone's     Com.     286.  v.  Long,  118  111.  638;  Galbraith  v. 

Declarations      of      the      ancestor,  McLain,    84    111.    379;    Kenney    v. 


DOWER,   JOINTURE,    ADVANCEMENTS. 


565 


wife  or  husband,  shall,  unless  otherwise  expressed  in  the  will, 
bar  the  dower  of  such  survivor  in  the  lands  of  the  deceased, 
unless  such  survivor  shall  elect  to  and  does  renounce  the  benefit 
of  such  devise  or  other  provision,  in  which  case  he  or  she  shall 
be  entitled  to  dower  in  the  lands  and  to  one-third  of  the  personal 
estate  after  the  payment  of  all  debts.  Mere  bequest  of  per- 
sonal estate  is  not  sufficient,  the  devise  must  be  of  land,  or  some 
interest  therein,  with  the  widow's  express  or  implied  assent  to 
relinquish.*^  Kenunciation  of  will  by  surviving  widow,  does  not 
affect  will,  it  stands,  and  the  statute  steps  in  and  provides  for 
equalizing  bequests  in  such  case.*^  Where  no  renunciation  is 
made,  it  will  be  conclusively  presumed  the  devise  is  accepted.'^^ 
It  is  held,  that  a  devise  by  will  to  the  wife  of  the  testator,  in 
equity  will  be  regarded  as  an  offer  to  purchase  the  wife's  dower 
interest  in  the  entire  realty  of  the  testator ;  and  upon  acceptance 
of  such  devise,  the  wife's  dower  is  barred;  but  the  corpus  of 
such  devise  retains  the  nature  of  dower  to  such  an  extent  as 


Tucker,  8  Mass.  142;  Quarles  v. 
Quarles,  4  Mass.  680;  Hobson  v. 
Trevor,  2  P.  Wms.  191;  Fitch  v. 
Fitch,  8  Pick.  479;  Witherell  v. 
Witherell,  2  Eng.  Ch.  184;  Varick 
V.  Edwards,  1  Hoff.  Ch.  382.  These 
citations  cover  generally  matters 
in  text,  and  notes  thereof  44,  45, 
46  and  47. 

In  Hundall  v.  Ham,  cited  in 
note  46,  the  term  "descent"  in  its 
technical  sense,  denotes  the  trans- 
mission of  real  estate,  or  interest 
therein,  on  the  death  of  the  owner 
intestate,  to  some  person  by  in- 
heritance, and,  as  so  used,  is  dis- 
tinguishable from  transmission  by 
devise,  which  is  technically  by 
purchase,  and  from  the  transmis- 
sion of  personal  property,  which 
is  governed  by  the  rules  of  dis- 
tribution. 

48 — Section  10,  chapter  41, 
"Dower  Act."    Starr  &  Curtis  An- 


notated Statutes  of  Illinois,  with 
Jones  &  Addington's  Supplements 
thereto.  Vol.  2,  p.  1464,  and  cases 
cited;  Vol.  4,  p.  446,  and  cases 
cited;  Vol.  5,  p.  180,  and  cases 
cited;  Kurd's  R.  S.  of  111.,  1905,  p. 
769.  The  following  cases  apply 
the  statute:  Jennings  v.  Smith, 
29  111.  116;  Deltzer  v.  Schuester, 
37  111.  301;  Brown  v.  Pitney,  39 
111.  468;  Haynie  v.  Dickens,  68  111. 
267;  Gauch  v.  St.  Louis  Mut.  Life 
Ins.  Co.,  88  111.  251;  Green  v. 
Birch,  2  111.  App.  528;  Heslet  v. 
Heslet,  8  111.  App.  22;  Cowdry  v. 
Hitchcock,  103  111.  262;  Collins  v. 
Wood,  63  111.  285;  Ditch  v.  Sen- 
nott,  117  111.  362;  Evans  v.  Price, 
118  111.   593. 

49 — McMurphy  v.  Boyles,  49  111. 
110;  Nicoll  V.  Scott,  99  111.  529; 
Marvin  v.  Ledwith,  111  111.  144. 

50— Scheible  v.  Rinck,  195  111. 
640. 


566  THE  LAW  OF  ESTATES. 

to  be  exempt  from  payment  of  testator's  debts.^^  And  where 
lots  in  Colfax  and  one  hundred  and  sixty  acres  of  land  were 
devised  to  the  widow  for  life  in  lieu  of  dower  and  homestead, 
and  she  accepted  such  provision  made  for  her,  the  court  below 
ordering  the  one  hundred  and  sixty  acres  sold,  without  reserving 
her  rights  in  the  same.  It  was  held:  The  property  devised  to 
her  in  lieu  of  dower  and  homestead,  is  not  in  excess  of  her 
rights  in  the  estate  as  a  widow,  she  took  as  a  purchaser  for 
value,  and  the  land  could  not  be  sold  to  pay  the  testator's 
debts.'2  A  will  providing  for  a  surviving  husband  only  to 
the  extent  of  his  legal  rights,  in  this  case,  one-third  of  the  per- 
sonalty, is  held  to  be  a  nullity  in  that  respect.^^  The  instrument 
renouncing  need  not  claim  any  specific  estate,  it  is  sufficient 
where  it  renounces  the  provisions  of  the  will.^-i  The  filing  of  a 
bill  in  chancery  to  contest  a  will  is  not  a  renunciation.  The 
statute  gives  time  of  one  year  for  that  act  after  letters.^^  An 
election  by  the  widow,  whose  husband  dies,  leaving  an  estate 
part  testate  and  part  intestate,  is  not  essential  to  her  right  to 
claim  her  legal  share  in  intestate  property.'^s 

639.  Renunciation  must  be  v/ithin  year  after  letters.  "Any 
one  entitled  to  an  election  under  either  of  the  two  preceding  sec- 
tions shall  be  deemed  to  have  elected  to  take  such  jointure, 
devise  or  other  provision,  unless,  within  one  year  after  letters 
testamentary  or  of  administration  are  issued,  he  or  she  shall 
deliver  or  transmit  to  the  county  court  of  the  proper  county 
a  written  renunciation  of  such  jointure,  devise  or  other  provi- 
sion. "^'^     The  former  statute  provided  for  election  within  one 

51— Richie  v.  Cox,  99   111.  App.  App.  113. 

374.  54— Gullett   v.    Farley,    164    111. 

52— Dauel    v.    Arnold,    201    111.  571. 

580;    Carper    v.    Crowl,    149    111.  55— See    post    639;    Scheible   v. 

465.      In    this    case    it    was    as-  Rinck,    195    111.    640. 

sumed   from  the   record,  that  the  56 — Sutton  v.  Read,  176  111.  78. 

court    below,    made    a    just    and  57 — Section      11,      chapter      41, 

equitable    apportionment     of    the  "Dower  Act."     Starr  &  Curtis  An- 

burden   to   the   widow.  notated   Statutes   of  Illinois,   with 

53 — Lawrence  v,   Balch,  98   111.  Jones  &  Addington's  Supplements 


DOWER,   JOINTURE,    ADVANCEMENTS.  567 

year  after  probate  of  will.  Under  the  old  statute,  delay  in 
election  through  ignorance  (Statute  of  1833),  requiring  elec- 
tion in  six  months,  held  not  to  forfeit  right.'^^  But  the  statute 
is  now  strictly  construed  as  to  time;  the  filing  of  a  bill  in 
equity  to  contest  a  wiU  does  not  extend  time  to  renounce.'* 

640.  Testate  estate  and  no  descendant — election  in  lieu  of 
dower.  "If  a  husband  or  wife  die  testate,  leaving  no  child  or 
descendants  of  a  child,  the  surviving  husband  or  wife  may,  if 
he  or  she  elect,  have,  in  lieu  of  dower  in  the  estate  of  which  the 
deceased  husband  or  wife  died  seized  (whether  the  right  to  such 
dower  has  accrued  by  renunciation  as  hereinbefore  provided,  or 
otherwise),  and  of  any  share  of  the  personal  estate  which  he  or 
she  may  be  entitled  to  take  with  such  dower  absolutely,  and  in 
his  or  her  own  right,  one-half  of  all  the  real  and  personal  estate 
which  shall  remain  after  the  payment  of  all  just  debts  and 
claims  against  the  estate  of  the  deceased  husband  or  wife.  The 
election  herein  provided  for  may  be  made  whether  dower  has 
been  assigned  or  not,  and  at  any  time  before  or  within  two 
months  after  notification  to  the  survivor  of  the  payment  of  debts 
and  claims,  and  not  afterwards.  "^<^     But  if  decedent  dies  with- 

thereto.  Vol.  2,  p.  1466,  and  cases  claim  which  such  survivor  may 
cited.  Vol.  4,  p.  446,  and  cases  afterwards  set  up  to  any  jointure, 
cited,  Kurd's  R.  S.  of  111.,  1905,  devise,  testamentary  provision  or 
p.  769.  Also  see  sections  9  and  dower  thus  renounced.  Starr  & 
10  referred  to  in  section  11  of  Curtis  Annotated  Statutes  of  li- 
the Dower  Act,  ante,  637,  638.  linois,    with  Jones   &  Addington's 

58 — United  States  v.  Duncan,  4  Supplements    thereto.     Vol.    2,    p. 

McLean,  99.  1467;    Vol.    4,   p.   447;    Kurd's   R. 

59— Scheible   v.   Rinck,    195    111.  S.  of  111.,  1905,  p.  769.     See  also, 

640;  Cowdrey  v.  Hichcock,  103  111.  Chestnut  v.  Chestnut,  15  111.  App. 

262.  See  section  13,  chapter  41,  442;  Coles  v.  Terrell,  162  111.  170. 
"Dower  Act,"  prescribing  form  of         60 — Section      12,      chapter      41, 

renunciation     and    providing    for  "Dower  Act."     Starr  &  Curtis  An- 

the    filing    of    same    in    ofBce    of  notated   Statutes   of  Illinois,  with 

the    Clerk   of   County   Court,    and  Jones  &  Addington's  Supplements 

entering  same  at  large  upon  the  thereto,  Vol.  2,  p.  1466,  and  cases 

records  of  the  Court,  thereupon  it  cited.    Vol.    4,    p.    447,    and    cases 

becomes   a   complete    bar   to   any  cited,  Kurd's  R.   S.   of  111.,  1905, 

p.  769. 


568  THE  LAW  OF  ESTATES. 

out  descendants  and  leaves  a  will  disposing  of  an  entire  estate, 
which  consists  of  personal  property,  without  making  any  provi- 
sion for  surviving  husband  or  wife,  the  surviving  husband  or 
wife,  must  fall  back  on  their  legal  rights  under  section  10  of  the 
Dower  Act,*^^  to  one-third  of  the  personal  estate  after  the  pay- 
ment of  debts.^2  ^]i  election  to  take  under  this  statute  bars 
dower  in  half  of  testator 's  lands,  not  taken  by  widow.^^  The  sur- 
viving husband  or  wife  in  the  absence  of  child  or  descendants 
of  such  child  cannot  take  under  sections  10  and  12  of  the  Dower 
Act;  they  must  elect,  for  they  are  not  entitled  to  take  under 
both  sections.  Where  the  terms  of  an  instrument  renouncing  are 
uncertain,  the  election  will  be  implied  from  acts  indicating 
choice.  The  filing  of  a  bill  in  equity  by  a  widow,  after  renuncia- 
tion, for  partition  of  deceased  husband's  estate,  by  which  she 
claims  to  be  the  owner  in  fee  simple  of  an  undivided  one-half  of 
the  real  estate,  is  held  to  be  notice  that  the  complainant  elected 
to  take  under  section  12  of  the  Dower  Act.^^  As  under  this  sec- 
tion the  surviving  husband  or  wife  become  seized  in  fee  simple 
of  an  undivided  one-half  of  the  real  estate,  such  may  be  dis- 
posed of  by  will,  and  the  devisee  is  entitled  to  have  the  estate 
partitioned.*^^  But  if  an  adopted  child  is  in  existence,  at  the 
time  of  the  death  of  the  husband  or  wife,  the  surviving  husband 
or  wife  cannot  take  under  section  12;  that  section  applies  to 
husband  or  wife  who  dies  testate,  without  leaving  a  child  or 
descendant  of  a  child.^^ 

641.  Divorce — effect  of.  If  any  husband  or  wife  is  divorced 
for  the  fault  or  misconduct  of  the  other,  except  where  the  mar- 
riage was  void  from  the  beginning,  he  or  she  shall  not  thereby 
lose  dower  nor  the  benefit  of  any  such  jointure,  but  if  such 

61~Ante,  638.  566;    Laurence   v.    Balch,    195   111. 

62— Laurence   v.   Balch,   195  111.     628. 

626.  66— Sayles   v.   Christie,   187   111. 

63— Lessley    v.    Lessley,    44  111.     435;   Keegan  v.  Geraghty,  101  111. 

527;   Evans  v.  Price,  118  111.  593.     26;    Sewell   v.   Roberts,   115  Mass. 

Si— Ante,  640.  263;    Morgan  v.  Stewart,   122  Mo. 

65— GuUett    V.    Farley,    164  111.     297. 


DOWER,  JOINTURE,  ADVANCEMENTS.  569 

divorce  shall  be  for  his  or  her  o-s\ti  fault  or  misconduct,  such 
dower  or  jointure,  and  any  estate  granted  by  the  laws  of  this 
State,  in  the  real  or  personal  estate  of  the  other,  shall  be  for- 
feited.^'' In  a  case  based  on  a  decree  of  divorce  granted  in 
Kansas  for  the  fault  and  misconduct  of  the  wife,  it  was  held 
the  dower  right  and  any  estate  of  homestead  was  forfeited  as 
against  the  lands  of  her  deceased  husband.^^  But  a  divorce 
without  fault  or  misconduct  on  the  part  of  the  husband  or  wife 
where  the  ground  of  divorce  is  desertion,  will  not  defeat  a  claim 
for  dower,  in  lands  of  either  party  after  death.^^  A  foreign 
divorce  based  upon  constructive  service  for  cause  not  recog- 
nized by  our  laws,  will  not  bar  dower  or  homestead. '^o 

642.  Adultery — effect  of.  "If  a  husband  or  wife  volun- 
tarily leave  the  other  and  commit  adultery,  he  or  she  shall  be 
forever  barred  of  dower  and  of  the  benefit  of  any  such  jointure, 
unless  they  are  afterwards  reconciled  and  dwell  together.  "'^^ 
At  common  law  and  by  early  statutes  in  aid  of  it,  wife's  dower 
might  be  barred  for  several  causes  that  do  not  now  exist. '^2 
Though  a  decree  for  divorce  rendered  on  any  statutory  ground 
will  bar  the  dower  of  the  guilty  husband  or  wife,  the  mere  fact 
that  the  surviving  husband  or  wife  has  been  guilty  of  any  of 
such  statutory  offenses  against  the  marriage  relation  other  than 
that  of  adultery  will  have  no  effect  to  deprive  such  offender 
of  dower.     Adultery  accompanied  by  elopement,  however,  oper- 


67 — Section      14,      chapter     41,  Durham  v.  Durham,  162  111.  589; 

"Dower  Act."     Starr  &  Curtis  An-  Knowlton    v.    Knowlton,    155    111. 

notated    Statutes   of    Illinois,   Vol.  158;   Barkman  v.  Barkman,  94  111. 

2,   p.    1468,   and   cases   cited,   Vol.  App.  441. 

4,  p.  447,  and  cases  cited,  Kurd's  71 — Section      15,      chapter      41, 

R.   S.   of  111.,  1905,  p.  770.     Clark  "Dower  Act."     Starr  &  Curtis,  An- 

V.   Lott,   11   111.   105;    Hamilton  v.  notated   Statutes   of  Illinois,   with 

Hamilton,  89  111.  349.  Jones  &  Addington's  Supplements 

68 — Rendleman    v.    Rendleman,  thereto.   Vol.    2,    p.    1468,    Vol.    4, 

118  111.  257.  p.  447,  and  cases  cited,  Kurd's  R. 

69— Gordon  v.  Dickison,  131  111.  S.  of  1905,  p.  770. 

141.  72— Sisk  V.  Smith,  1  Gilm.  (111.) 

70— Lynn  v,  Sentel,  183  111.  389;  503;  Spurck  v.  Cook,  19  111.  415. 


570  THE  LAW  OF  ESTATES. 

ates  to  bar  dower  by  the  express  provisions  of  section  of  statute 
quoted,  unless  condoned,  and  no  decree  of  divorce  is  necessary 
to  effect  such  forfeiture.'^ 

643.  Judgment,  conveyance,  laches,  crime,  not  to  bar  other's 
dower.  "No  judgment  or  decree  confessed  or  recovered 
against  a  husband  or  wife,  and  no  laches,  default,  covin,  for- 
feiture or  crime  of  either,  no  deed  or  conveyance  of  either,  with- 
out the  assent  of  the  other  evinced  by  the  acknowledgment 
thereof,  as  required  by  law,  shall  prejudice  the  right  of  the 
other  to  dower  or  jointure,  or  preclude  the  othor  from  the  recov- 
ery thereof  if  otherwise  entitled  thereto."''^  The  conveyance 
act  regulates  the  manner  by  which  dower  may  be  relinquished.'^^ 
In  the  absence  of  a  provision  in  a  decree,  dower  is  protected 
under  this  section  of  the  statute.'^^  Under  the  statute  of  1868, 
an  agreement  between  husband  and  wife  not  acknowledged,  did 
not  bar  dower.'' '^ 

644.  Exchange  of  land — dower  in.  "If  a  husband  or  wife 
seized  of  an  estate  of  inheritance  in  lands,  exchange  it  for  other 
lands,  the  surviving  husband  or  wife  shall  not  have  dower  of 
both,  but  shall  make  election  as  hereinbefore  provided,  to  be 
endowed  of  the  lands  given,  or  of  those  taken  in  exchange; 
and  if  such  election  be  not  evinced,  by  the  commencement  of 
proceedings  for  the  recovery  and  assignment  of  dower  of  the 
lands  given  in  exchange,  within  one  year  after  the  death  of 
such  husband  or  wife,  the  survivor  shall  be  deemed  to  have 
elected  to  take   dower  of   the   lands   received   in  exchange."''^ 

73— Decker   v.    Decker,    193    111.  son  v.   Brown,  83   111.   562;    Herd- 

292-293.     Nelson   on  Divorce,   sec.  man   v.   Pace,   85    111.    345;    Elder 

430.  V.    Jones,    85    111.    384;    Lewis    v. 

74 — Section      16,      chapter      41,  Graves,     84     111.     205;     Bute     v. 

"Dower  Act."     Starr  &  Curtis  An-  Kneale,  109  111.  652. 

notated   Statutes    of   Illinois,   Vol.  76— Mitchell  v.   Sawyer,  115  111. 

2,   p.   1469;    Kurd's   R.   S.    of   111.,  650. 

1905,  p.  770.  77— Bottomly     v.     Spencer,      36 

75— Section  18,  chapter  30,  "Con-  Fed.  Rep.  732. 

veyance     Act."       Kurd's     R.      S.  78— Section      17,      chapter      41, 

1905,   p.    466.      See    also,    Morri-  "Dower  Act."    Starr  &  Curtis  An- 


DOWER,   JOINTURE,    ADVANCEMENTS.  571 

The  word  "exchanged"  as  used  in  section  above,  retains  its 
common  law  meaning,  and,  as  defined  by  Blackstone,  **is  a 
mutual  grant  of  equal  interests,  the  one  in  consideration  of  the 
other.  "'^  And  so  applying  these  rules  and  discussing  the  cases 
the  court  in  Hartwell  v.  DeVault,^^  say:  "An  application  of 
the  rules  thus  laid  down  to  the  facts  of  this  case  shows,  that 
there  was  here  no  'exchange'  of  lands  within  the  meaning  of 
that  term.  The  deeds  executed  by  the  pa,rties  not  only  do  not 
make  use  of  the  word,  'exchange,'  but,  when  considered  in  con- 
nection with  the  contract  made  on  the  same  day  and  with  all 
the  other  evidence,  they  do  not  amount  to  'a  mutual  grant  of 
equal  interests,  the  one  in  consideration  of  the  other. '  ' ' 

645.  Property  acquired  after  will.  Property  acquired  after 
a  will  made  may  or  may  not  include  the  devise  of  such  by  will. 
Whether  or  not  such  after  acquired  property  passes  by  existing 
will  is  a  mere  matter  of  the  intention  of  the  testator  or  testatrix 
as  expressed  by  will.  The  court  will  give  effect  to  the  inten- 
tion and  if  possible  from  the  language  of  the  will  construe  such 
instrument  to  pass  such  property  but  if  in  doubt,  after  acquired 
property  will  be  treated  as  intestate  and  distributed  accord- 
ingly.81 

notated   Statutes  of   Illinois,  with  stone's  Com.,  marg.  p.  323;  7  Am. 

Jones  &  Addington's  Supplements  &  Eng.  Ency.  of  Law,  pp.  115,  892, 

thereto.   Vol.   2,   p.   1469;    Vol.    4,  and  cases  cited  in  notes, 

p.  447,  and  cases  cited;  Kurd's  R.  80—159  111.  333. 

S.  of  111.  1905,  p.  770.  81— Williams    v.    Uohnson,    112 

79—1  Scribner  on  Dower,  p.  286,  111.  66;  Decker  v.  Decker,  121  111. 

sec.  11;  1  Washburn  on  Real  Es-  343.      See    ante,    chap.    10,    202, 

tate,  marg.  p.  158,  sec.  11;  2  Black-  "Construction  of  Wills." 


CHAPTER  XXXVI 


DISPOSAL  OF  UNCLAIMED  MONEY 


Sec. 

646.  Unclaimed    money    to    be    de- 

posited. 

647.  How  obtained  after  deposit. 

648.  The  court  making  the   order 


Sec. 


for  deposit  is  the  one  to 
apply  to  for  recovery  of 
funds  in  hands  of  county 
treasurer. 


Sec.  646.  Unclaimed  money  to  be  deposited.  "That  when 
any  administrator  or  executor  shall  have  made  final  settlement 
with  the  county  court,  it  shall  be  the  duty  of  the  court  to  order 
said  administrator  or  executor  to  deposit  with  the  county  treas- 
urer such  moneys  as  he  may  have  belonging  to  any  non-resident 
or  unknown  heir  or  claimant,  taking  his  receipt  therefor  and 
have  the  same  filed  at  the  office  of  the  county  clerk  where  such 
settlement  has  been  made.  "^ 

647.  How  obtained  after  deposit.  "When  money  shall  be 
deposited  as  aforesaid,  the  person  or  persons  entitled  to  the 
same  may  at  any  time  apply  to  the  court  making  said  order  and 
obtain  the  same  upon  making  satisfactory  proof  to  the  court  of 
his,  her  or  their  right  thereto.  "^ 

648.  The  court  making  the  order  for  deposit  is  the  one  to 
apply  to  for  recovery  of  funds  in  hands  of  county  treasurer. 

Heretofore  we  have  shown  the  settled  law  of  this  State  to  be  in 
effect,  that  a  court  of  equity  will  not  assume  jurisdiction  in  the 
matter  of  estates  pending  in  the  courts  of  probate,  where  such 
court  can  afford  the  requisite  relief,  unless  special  reasons  be 


1 — Par.   136,   section  1,  chapter 
3.      "Administration    of    Estates." 


2 — Par.    137,   section   2,   chapter 
"Administration    of    Estates." 


Starr  &  Curtis  Annotated  Statutes     Starr  &  Curtis  Annotated  Statutes 


of   Illinois,   Vol.    1,   pp.    349,    350; 
Kurd's  R.  S.  of  111.,  1905,  p.  126. 


of  Illinois,  Vol.  1,  p.  350;   Kurd's 
R.  S.  of  111.,  1905,  p.  127. 


572 


DISPOSAL    OF    UNCLAIMED    MONEY. 


573 


deemed  sufficient,  by  a  court  of  equity,  showing  why  the  court 
of  probate  may  not  afford  the  relief.^  A  bill  in  equity  cannot 
be  maintained  by  an  administrator  of  an  estate  for  the  purpose 
of  determining  what  disposition  should  be  made  of  the  funds 
in  his  hands,  or  what  creditor  should  receive  the  fund  he  held 
for  distribution;  it  being  held  that  the  court  of  probate  has 
ample  jurisdiction  to  settle  all  questions,  relating  to  the  settle- 
ment and  distribution  of  estates.'* 


3 — See  chapter  2  of  this  work 
— "Jurisdiction,"  ante,  45;  also 
Shepard  v.  Speer,  140  111.  238. 

4— Strauss  v.  Phillips,  189  111. 
9;  Dougherty  v.  Hughes,  165  111. 
394;  Meadowcroft  v.  Winnebago 
Co.,  181  111.  511-512.  In  the  lat- 
ter case  citing  from  well  estab- 
lished authority,  it  is  held :  "When 
the  owner  of  property  dies  intes- 
tate, without  heirs  capable  of  in- 
heriting it,  the  title  thereof  de- 
volves, by  operation  of  law,  upon 
the  State."  Crane  v.  Reeder,  21 
Mich.  24;  Dow  v.  Ohanlon,  1 
N.  J.  582;  Commonwealth  v.  Hite, 
6  Leigh.  588;  People  v.  Cultoy,  3 
Johns,  1.    See  also  section  1,  chap- 


ter 49,  entitled  "Escheats."  Starr 
&  Curtis  Annotated  Statutes  of  Il- 
linois, Vol.  2,  p.  1809;  Kurd's  R. 
S.  of  111.,  1905,  p.  1027.  In  Mead- 
owcroft V.  Winnebago  County, 
supra.  It  is  held  the  act  does 
not  in  anywise  purport  to  divest 
the  title  to  property,  even  if  the 
title  were  held  to  be  in  the  State. 
Section  1  of  chapter  49  was  in- 
tended to  supersede  all  previous 
enactments  in  relation  to  the 
subject  of  escheats,  and  hence  the 
law  now  is  that  the  property  of 
illegitimates  dying  without  heirs 
capable  of  holding  the  same  es- 
cheats to  the  County  and  not  to 
the  State. 


CHAPTER   XXXVII 


EVIDENCE  AND   DEPOSITIONS,  UNDER  STATUTE 


Sec.  Sec. 

649.  Introductory    remarks.  665. 

650.  Witnes'ses — competency      and     666, 

credibility  of — interest  or  667. 
criminal  conviction  no  dis-  668. 
Qualification.  669. 

651.  Competency   and    credibility. 

652.  Freedom  of  religious  worship 

— limitations — no  prefer- 
ence. 

653.  Events    after   death    of   dece- 

dent, or  after  majority  of 
minor. 

654.  As  to  transactions  proved  by 

an  agent. 

655.  Transactions  proved    by    par- 

ties entitled  to  benefit  of 
statute. 

656.  Conversations    during   life   of 

deceased  adduced  by  ad- 
verse witnesses. 

657.  As    to    transactions    touched 

by  deposition  of  deceased. 

658.  Witnesses    when    not    compe- 

tent, against  trustees,  rep- 
resentatives, heirs,  legatees 
and  devisees. 

659.  Who   are   interested    i)arties. 

660.  Incompetent    witnesses. 

661.  Incompetent      witneses      con- 

tinued. 

662.  When  party  competent  to  tes- 

tify in  his  own  behalf — 
competent  witnesses  gen- 
erally. 

663.  Competent      witnesses       con- 

tinued. 

664.  Administrators   as   witnesses. 

574 


670. 

671. 
672. 


673. 


674. 

675. 

676. 

C77. 
678. 

679. 
680. 
681. 
682. 
683. 

684. 

685. 
686. 

687. 


Admissions   and   declarations. 

Agent  direct  and  implied. 

Written   instruments. 

Book  accounts. 

Compulsory  production  of 
books  for  inspection. 

Surviving  partner — contract 
with   deceased   agent. 

Husband   and  wife. 

Reference  and  application  in 
general  to  said  section  5  of 
the  statute. 

Concerning  separate  proper- 
ty of  wife.  Husband  and 
wife  may  be  witness  for 
and    against   each    other. 

Husband  and  wife  agents  for 
each  other. 

Adverse  party  compelled  to 
testify. 

Incompetency  not  removed 
by  release  or  assignment. 

Further   exceptions. 

Production  of  books  and 
writings. 

Printed   statutes. 

Exemplified   statutes. 

Reports    of    courts. 

Court  records  how  certified. 

Records  of  cities  how  certi- 
fied. 

Records  of  private  corpo- 
rations how  certified. 

Form   of  certificate. 

Records  of  justices  of  the 
peace,  certified  copies. 

Sworn  copies,  false  certifi- 
cate, penalty. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.         575 

Sec.  649.  Introductory  remarks.  Before  the  year  1867, 
when  the  legislature  of  Illinois,  passed  an  act  in  relation  to  the 
legal  competency  of  witnesses,  entitled  ''Evidence  and  Deposi- 
tions," the  common  law  rules  as  to  the  competency  of  witnesses 
to  testify,  in  both  law  and  equity  proceedings  were  rigidly 
enforced  in  this  State.  At  common  law,  no  party  to  the  record 
could  testify,  whether  interested  in  the  result  or  not,  v*'ithout 
the  consent  of  all  the  other  parties.  In  courts  of  equity,  how- 
ever, it  was  no  objection,  that  a  witness  was  a  party  to  the 
record,  the  only  inquiry  was,  whether  a  witness  was  called  to 
support  his  own  interest,  if  not  interested  in  the  result,  the  party 
might  testify.!  "The  rule  of  the  common  law  in  relation  to  the 
interest  of  a  witness  is  familiar  to  all,  and  operated  in  full  force 
in  this  State  until  the  enactment  of  the  law  of  1867.  However 
much  the  existence  of  the  rule  was  regretted  by  the  most  learned 
and  distinguished  courts  of  this  country  and  of  England,  it  was 
inexorably  enforced,  and  witnesses  of  the  highest  character  in 
the  community  were  excluded  from  the  stand,  if  it  appeared 
they  had  an  interest  in  the  event  of  the  suit.  To  make  sueh 
competent,  resort  was  had  to  a  written  release  executed  with  all 
the  forms  of  law.  Our  legislature,  in  a  spirit  of  enlightened 
policy,  abolished  this  rule,  by  declaring  that  no  person  should  be 
disqualified  as  a  witness  in  any  civil  action,  suit  or  proceeding, 
or  by  reason  of  his  or  her  interest  in  the  event  thereof,  as  a 
party  or  otherwise,  or  by  reason  of  his  or  her  conviction  of  any 
crime.  "2  The  act  of  1867  authorized  a  party  to  call  opponent 
as  a  witness;  but  in  order  to  do  so,  required  an  affidavit  by 
such  party  or  his  attorney,  to  show  by  such  instrument  what 
was  expected  to  be  proved  by  the  opponent,  and  a  statement  in 
the  affidavit,  that  the  matters  sought  to  be  established  by  the 
evidence  of  the  opponent,  could  not  otherwise  be  proved.    But 

1— Kimball   v.   Cook,   1   Gilm.   6     52   111.    203;    Bradshaw  v.   Combs, 
(111.)     433;     Galena     &     Chicago     102  111.  428. 

Union  R.  R.  Co.  v.  Welch,  24  111.         2—111.  Cent.  P..  R.  Co.  v.  Weldon, 
33;  111.  Cent.  R.  R.  Co.  v.  Weldon,     52  111.  293.    See  also  Laws  of  1867^ 

p.  183,  sec.  1. 


576  THE  LAW  OF  ESTATES. 

such  affidavit  might  be  upon  information  and  belief  of  the 
affiant.3  The  competency  of  witnesses  in  the  various  matters 
relating  to  administrators,  executors,  guardians,  conservators, 
and  the  various  claims  of  every  conceivable  character,  that  must 
of  necessity  arise  under  the  county  and  probate  court  practice, 
are  in  almost  every  proceeding  brought  in  question.  The  legal 
representatives  of  a  deceased  person,  the  minor  and  others  under 
disability,  are,  in  such  courts,  coming  constantly  in  contact  with 
the  legal  competency  of  witnesses  to  testify.  We  therefore  deem 
it  important  to  give  extensively  the  statute  law  of  Illinois  in  this 
respect,  and  many  of  the  decisions  relating  to  such,  fixing  the 
competency  of  witnesses  and  their  evidence  under  the  act,  en- 
titled "Evidence  and  Depositions,"* 

650.  Witnesses — competency  and  credibility  of — interest  or 
criminal  conviction  no  disqualification.  An  act  in  regard  to 
evidence  and  depositions  in  civil  cases,  approved  March  29, 
1872,  in  force  July  1,  1872,  entitled  ' '  Evidence  and  Depositions, ' ' 
provides  "That  no  person  shall  be  disqualified  as  a  witness  in 
any  civil  action,  suit  or  proceeding,  except  as  hereinafter  stated, 
by  reason  of  his  or  her  interest  in  the  event  thereof,  as  a  party 
or  otherwise,  or  by  reason  of  his  or  her  conviction  of  any  crime ; 
but  such  interest  or  conviction  may  be  shown  for  the  purpose 
of  affecting  the  credibility  of  such  witness ;  and  the  fact  of  such 
conviction  may  be  proven  like  any  fact  not  of  record,  either  by 
the  witness  himself  (who  shall  be  compelled  to  testify  thereto) 
or  by  any  other  witness  cognizant  of  such  conviction,  as  impeach- 
ing testimony,  or  by  any  other  competent  evidence."^ 

3 — Bell    V.    Thompson,    34    111.  Supplements    thereto,    Vol.    2,    p. 

529;  Rann  v.  Rann,  95  111.  433.  1822,  Vol.  4,  p.  605,  et  seq.;  Vol. 

4 — Chapter      51,      section      11,  5,  p.  243,  et  seq.;  Vol.  1,  p.   540, 

chapter     19,     entitled     "Canals";  same  Vol.,  p.  1092;  Vol.  3,  p.  3360; 

section    32,    chapter    34,    entitled  Vol.  4,  p.  1073;  Vol.  3,  p.  2964;  Vol. 

"Counties  ;     section     28,     chapter  4,  p  988;  Kurd's  R.  S.  of  111.,  1905, 

116,   entitled    "Records";     chapter  pp.  1034,  216,  565,  1626,  1527. 
110,     entitled    "Plats."      Starr    &         5— Section   1,   chapter  51,   "Evi- 

Curtis  Annotated  Statutes  of  Illi-  dence  and  Depositions."     Starr  & 

nois,    with    Jones    &    Addington's  Curtis  Annotated  Statutes  of  Illi- 


EVIDENCE  AND  DEPOSITIONS,   UNDER  STATUTE.        577 

651.  Competency  and  credibility.  Intelligence,  and  not  age, 
was  the  test  of  the  competency  of  a  witness  of  tender  years.  A 
child  of  nine  years  testified  on  her  voir  dire  that  she  "under- 
stood the  nature  of  an  oath,  and  that  if  she  did  not  swear  the 
truth  she  would  get  into  hell  fire."  This  being  the  rigid  rule, 
the  witness  was  held  competent  to  testify.''  The  competency  of 
a  witness  is  for  the  court  to  determine;  the  jury  cannot  reject 
testimony  admitted  by  the  court  for  supposed  incompetency.'^ 
The  interest  of  a  witness  does  not  necessarily  diminish  his  credi- 
bility.s  Right  of  party  to  testify  in  his  own  behalf  is  a  per- 
sonal privilege.^  Where  a  party  elicits  evidence,  that  may  or 
may  not  be  competent,  he  by  so  doing  is  in  no  position  to  raise 
the  competency  of  such  witness  where  record  is  reviewed  on 
appeal  for  the  first  time.^*^  But  the  competency  of  certain  evi- 
dence under  a  bill  and  answer  before  a  master  in  chancery,  on 
which  an  original  decree  was  entered,  to  set  aside,  alter  or 
change  such  decree,  may  be  considered  in  determining  the  com- 
petency of  a  witness  and  the  weight  or  value  of  certain  evi- 
dence, if  the  witness  was  found  competent  to  testify.^^  Doubts 
are  to  be  resolved  in  favor  of  the  competency  of  a  witness.^- 
In  the  case  of  Matze7ibaugh  v.  The  People,^^  it  is  said:  "The 
offense  of  which  the  appellant  was  convicted  is  not  of  the  char- 
acter or  grade  of  crime  deemed  infamous  at  the  conmion  law  or 

nois,    with    Jones    &    Addington's  R.  R.   Co,  v.  Weldon,  52  111.  290; 

Supplements    thereto,    Vol.    2,    p.  Smith  v.  West,  103  111.  332. 

1822,  Vol.  4,  p.  605,  Vol.  5,  p.  243,  10— Emerick  v.  Hileman,  197  III. 

et   seq.,    "General    notes";    Kurd's  375;  Becker  v.  Foster,  64  111.  App. 

R.  S.  of  111.,  1905,  p.  1034.  192;    Doty    v.    Doty,    159    111.    52; 

6— Draper  v.  Draper,  68  111.  17.  Dewes  v.  Osborne,  178  111.  42. 


7— Wickliffe    v.    Lynch,    36    111. 


11— Ronan    v.    Bluhm,    173    III. 

285;   Whittaker  v.  Whittaker,  151 
209;   City  of  Aurora  v.  Scott,  185     j,,    ggfi 

^'^'  ^^^-  12— Christianson      v.      Dunham 

8— Douglas   V.    FuUerton,    7   III.  Towing   &    Wrecking   Co.,   75    111. 

App.   102.  App.  274. 

9— Moore  v.  Wright,  90  111.  470;  13—194  111.  113;   1  Greenleaf  on 

People  V.  Starr,  50  111.  52;  Morgan  Evidence,   section   373;    16  Am.   & 

V.   Roberts,   38   111.   65;    111.   Cent.  Eng.  Ency.  of  Law,  2d  ed.,  246-247, 


and   cases   cited   in  notes. 


37 


578  THE  LAW  OF  ESTATES. 

under  our  statute.  It  is  a  statutory  offense,  punishable  by  fine 
and  imprisonment  in  the  county  jail.  Nor  is  it  of  the  class  of 
offenses  denominated  cn'wen  falsi,  which  were  deemed  infamous 
at  common  law.  Crimen  falsi,  according  to  the  better  opinion, 
does  not  include  all  offenses  which  involve  a  charge  of  untruth- 
fulness, but  only  such  as  injuriously  affect  the  administration 
of  public  justice,  such  as  perjury,  subornation  of  perjury,  sup- 
pression of  testimony  by  bribery  or  conspiracy  to  procure  the 
absence  of  a  witness,  or  to  accuse  one  wrongfully  of  a  crime, 
or  battery,  or  the  like.""  The  enactment  of  said  section 
1  of  our  statute  on  evidence  has  no  effect  to  author- 
ize the  introduction  of  proof  of  the  conviction  of  the  witness  of 
an  offense  that  would  not  have  rendered  him  incompetent  to 
testify  in  the  absence  of  the  statute."*^  As  aft'ecting  the  credibil- 
ity of  the  claimant,  he  may  be  interrogated  upon  cross-examina- 
tion as  to  whether  he  was  convicted  of  a  crime  or  confined  in  the 
penitentiary.  But  the  fact  of  such  conviction  will  not  dis- 
qualify a  witness  under  this  first  section  of  the  act  in  relation 
to  evidence  and  depositions.^^  And  where  a  claim  for  services. 
was  sought  to  be  collected  from  the  estate  of  a  deceased  person, 
it  was  held  proper  cross-examination  to  show  witness  was  con- 
victed of  crime. 

652.  Freedom  of  religion  and  worship — limitations — no 
preference.  Article  2,  section  3,  of  the  Constitution  of  the 
State  of  Illinois,  1870,  is  as  follows:  "The  free  exercise  and 
enjoyment  of  religious  profession  and  worship,  without  dis- 
crimination, shall  forever  be  guaranteed;    and  no  person  shall 

14 — 1    Greenleaf    on     Evidence,  anbeklar   v.    People,    93    111.    App. 

sec.  373;    16  Am.  &  Eng.  Ency.  of  555;     Burke    v.    Stewart,    81    111. 

Law,   2d  ed.,   246-247.  App.   509;    Gem  v.   People,   87   111. 

14a — Ante  650;    Bartholomew  v.  App.    161;    Lamkin   v.    Burnett,    7 

People,    104    111.    601.  111.  App.   143.     See  also  Criminal 

15 — Estate  of  Margaret  Handlin  Code,      division      13,     section      6, 

V.    Law,    34    111,    App.    84.      And  chapter   38.      Starr   &   Curtis   An- 

see  the  following  cases  in   point,  notated    Statutes   of   Illinois,   Vol. 

Gage  V.  Eddy,  167   111.  108;    Dax-  1,    p.    1397;    Kurd's   R.    S.    of   III. 

1905,    p.    745. 


EVIDENCE  AND  DEPOSITIONS,   UNDER  STATUTE.        579 

be  denied  any  civil  or  political  right,  privilege  or  capacity,  on 
account  of  his  religious  opinions;  but  the  liberty  of  conscience 
hereby  secured  shall  not  be  construed  to  dispense  with  oaths  or 
affirmations,  excuse  acts  of  licentiousness,  or  justify  practices 
inconsistent  with  the  peace  or  safety  of  the  State.  No  person 
shall  be  obliged  to  attend  or  support  any  ministry  or  place  of 
worship  against  his  consent,  nor  shall  any  preference  be  given, 
by  law  to  any  religious  denomination  or  mode  of  worship.  "^^ 
Certain  Chinese  witnesses,  in  addition  to  the  oath  prescribed  by 
the  laws  of  this  State,  were  also  allowed  to  be  sworn  according 
to  a  Chinese  practice,  which  was  called  the  "Chinese  Chicken- 
oath."  The  lower  court  ruling  that  those  of  the  witnesses  who 
were  willing  might  take  the  oath,  but  that  none  of  them  should 
be  compelled  to  do  so.  Part  of  the  witnesses  were  sworn  in  that 
way,  in  addition. to  the  regular  oath.  Held:  This  proceeding 
having  been  had  at  the  instance  and  request  of  the  defendants 
they  cannot  be  heard  to  complain  of  it.^'^  This  section  of  the 
constitution  was  construed  and  defined,  hi  re  Walker. ^^  Sec- 
tion 3  of  article  2  of  our  constitution  therefore  constitutes  a 
guaranty  of  absolute  freedom  of  thought  and  faith,  whether 
orthodox,  heterodox.  Christian,  Jewish,  Catholic,  Protestant,  Lib- 
eral, conservative,  Calvinistic,  Armenian,  Unitarian  or  other 
religious  belief,  theology  or  philosophy,  and  also  the  right  of  free 
exercise  and  enjoyment  of  religious  professions  and  worship  of 
any  variety  of  form,  the  only  restraint  upon  the  free  exercise  of 
liberty  of  conscience  being,  that  oaths  and  affirmations  shall  not 
thereby  be  dispensed  with,  licentious  acts  excused  or  practices 
justified  which  are  dangerous  to  the  peace  and  safety  of  the 
State." 

16 — Article  2,  section  3,  Consti-  Ewing  v.  Bailey,  36  111.  App.  191. 

tution   of  Illinois,   1870.     Starr  &  17— Bow  v.  People,  160  111.  439. 

Curtis   Annotated    Statutes   of    II-  18—200  111.  573. 

linois,  Vol.   1,   p.  104;    Kurd's  R.  See    section    3,    article    2,    Con- 

S.  of  111.,  1905,  p.  54.  Gtitution    of    Illinois    1870.      Starr 

See  also  the   following:     Chase  &  Curtis  Annotated  Statutes  of  U- 

v.    Cheeney,   58    111.    500;    Nichols  linois.   Vol.   1,   p.   104;    Kurd's  R. 

V.    School    Directors,    93    111.    61;  S.    of    111.,    1905,    p.    54. 


580  THE  LAW  OF  ESTATES. 

653.  Events  after  death  of  decedent — or  after  majority  of 
minor.  If  party  testifies  only  to  facts  occurring  after  the 
death,  he  comes  within  the  first  clause  of  section  2,  chapter  51, 
entitled  "  Evidence.  "^^  A  guardian  is  competent  to  testify  at 
hearing  on  his  report  to  facts  occurring  after  parents'  death.^o 
And  so  a  guardian  by  petition  asking  to  have  the  homestead 
vested  in  children  upon  the  ground  that  the  widow  had  aban- 
doned them :  It  was  held  the  widow  was  a  competent  witness  to 
testify  to  facts  occurring  after  death,  and  if  petitioner  was 
suing  for  the  homestead  as  heir  of  deceased,  the  defendant 
would  be  competent  to  testify  to  such  facts.^i  So  under  a 
statement  of  facts  occurring  after  death  the  administrator  is  a 
competent  witness.22  When  a  witness  is  competent  in  his  own 
behalf,  under  certain  clauses  of  the  statute,  if  questions  put 
to  him  call  for  evidence  which  he  is  not  competent  to  give, 
objection  should  be  made,  and  if  overruled,  exception  taken; 
unless  this  is  done  the  question  of  his  incompetency  as  to  such 
evidence  cannot  be  raised  in  the  Appellate  Court.^s  And  so  if 
one  who  has  testified  is  incompetent  in  a  case  against  the 
administratrix,  and  objection  made  thereto,  and  subsequently 
such  administratrix  is  dismissed  out  of  such  proceeding,  the 
question  of  incompetency  of  witness  is  by  such  act  removed 
from  the  cause.^^  So  parties  incompetent  by  virtue  of  section 
of  statute  may  testify  against  their  own  interest  and  be  bound 
thereby.25  The  competency  of  a  witness  is  not  destroyed  be- 
cause some  future  event  may  bring  her  within  the  provisions  of 
the  first  clause  of  the  act  relating  to  evidence. 26     Where  the 

19 — Section  2,  chapter  51,  "Evi-  Kingman  v.  Higgins,  100  111.  319. 

dence  and  Depositions."     Starr  &  22— Stewart  v.  Kirk,  69  111.  509. 

Curtis   Annotated    Statutes    of   II-  23— Pease  v.  Hunt,  60  111.  App. 

linois,  Vol.  2,  pp.  1824,  1831,  and  585. 

cases   cited   under   section  of  sta-  24 — McDavid  v.  McLean,  202  111. 

tute    in    question.      Hurd's    R.    S.  358. 

of  111.,   1905,  pp.   1034,   1035.     See  25— McKay    v.    Riley,    135    111. 

also  Black  v.  Miller,  71   111.  App.  586;     Neish    v.    Gannon,    198    IlL 

456.  223. 

20— In  re  Steele,  65  111.  322.  26— Baker  v.  Baker,  202  111.  617; 

21— Carr  v.   Carr,   177   111.   456;  Waugh    v.    Moan,    200    111.    302; 


EVIDENCE  AND  DEPOSITIONS,   UNDER  STATUTE.        581 

Appellate  Court  finds  that  a  person  is  an  interested  witness, 
such  finding  or  judgment  of  that  court  is  conclusive  of  that 
fact.27 

654.  As  to  transactions  proved  by  an  agent.  Where  an 
agent  of  the  deceased  is  called  and  has  given  his  evidence  as  a 
competent  witness  under  clause  2  of  section  2  evidence  act,  a 
party  in  interest  may  testify  only  to  contradict  the  testimony  of 
such  agent.  The  incompetency  of  an  interested  witness  is  not 
waived,  from  the  fact  that  the  agent  of  the  deceased  has  been 
called  to  testify.  Such  interested  witness  may,  however,  testify 
as  to  such  matters  as  are  given  in  evidence  by  such  agent;  but 
as  to  matters  which  are  brought  out  in  cross-examination  of  such 
agent  which  he  has  not  testified  to  on  direct  examination,  such 
interested  witness  cannot  be  permitted  to  touch  upon  in  his  testi- 
mony.^^ 

655.  Transactions  proved  by  parties  entitled  to  benefit  of 
statute.  The  lower  court,  on  rebuttal  refused  to  allow  appel- 
lant to  testify  either  in  explanation  or  denial  of  conversations 
and  declarations  which  took  place  before  the  death  of  the  dece- 
dent and  in  his  presence  between  the  heirs  and  the  witness  his 
surviving  widow,  in  a  proceeding  for  partition  between  the 
heirs  against  the  wife  of  the  deceased.  On  appeal  the  ruling 
of  the  lower  court  was  held  error.  The  court  saying:  Under 
the  third  clause  of  section  2  of  the  evidence  act,  the  witness  was 
**  clearly  competent  to  testify  in  rebuttal  as  to  transactions  or 

Volbracht  v.   White,   197   111.   301.  Starr  &  Curtis  Annotated  Statutes 

See  also  the  following  cases,  re-  of  Illinois,  Vol.   2,   pp.   1841-1842, 

lating    to    the    competency    or   in-  and   cases  cited   under   section  in 

competency  of  witness,  in  matter  question.     Albers  Commission  Co. 

of  contest  of  will.    Brace  v.  Black,  v.  Sessel,  193  III.  153, 
125  111.  33;    Pyle  v.  Pyle,  158  111.         27— McAyeal  v.  Gullett.  202  111. 

289;    Taylor    v.    Pegram,    151    111.  216;  Cronin  v.  Royal  League,  199 

106;    Bardell    v.    Brady,    172    111.  111.  234;  Anthony  Ittner  Brick  Co. 

420.      See   section    7,    chapter    51,  v.  Ashby,  198  111.  565. 
"Evidence        and        Depositions."         28 — Leob  v.  Stern,  198  111.   381. 

Kurd's   R.   S.    111.,   1905,    p.    1036.  See  also  statute  citations.     Notes 

19,  26,  ante,  653. 


582  THE  LAW  OF  ESTATES. 

conversations  between  herself  and  an  opposite  party  or  party 
in  interest,  after  such  opposite  party  or  party  in  interest  had 
testified  to  such  conversation  or  transaction,  and  on  this  point  it 
would  be  immaterial  whether  the  husband  was  present  or  not. 
There  is  nothing  in  section  5  of  the  act  which  would  exclude 
her  testimony  on  the  ground  that  it  related  to  conversations  or 
transactions  between  husband  and  wife,  for  in  this  case  they 
were  between  appellant  and  these  heirs,  and  no  admission  of  or 
conversation  with  the  husband  was  involved.  "29 

656.  Conversations  during  life  of  deceased  adduced  by  ad- 
verse witnesses.  As  to  matters  arising  under  the  fourth  clause 
of  the  2d  section  of  the  act  relating  to  evidence,  it  is  said,  in 
the  case  of  Volbracht  v.  White :^^  "The  conversations  or  admis- 
sions to  which  an  interested  party  may  testify  to  under  this 
section  are  the  conversations  or  admissions  which  others  have 
testified  that  he  made — not  the  conversations  or  admissions  made 
by  the  deceased  person;  and  the  party  so  called  as  a  witness  is 
competent,  under  this  clause,  to  testify  only  to  such  admissions 
or  conversations  as  are  said  to  have  been  made  by  him  out  of 
the  presence  of  the  deceased  person.  Such  is  the  express  provi- 
sion of  the  statute  and  also  the  construction  given  it  by  this 
court.31 

657.  As  to  transactions  touched  by  deposition  of  deceased. 

Under  fifth  clause  of  section  2  of  the  act  relating  to  evidence. 
When  the  ''deposition  of  such  deceased  person  shall  be  read  in 
evidence  at  the  trial,  any  adverse  party  or  party  in  interest  may 
testify  as  to  all  matters  and  things  testified  to  in  such  deposi- 
tion by  such  deceased  person,  and  not  excluded  for  irrelevancy 
or  incompetency."     The   death  of  a  person  cannot  affect  the 

29 — Blanchard      v.      Blanchard,        31 — Buckman  v.  Alwood,  71  111. 

191   111.   454.     This   clause   of  the  155;    Maher   v.   Trust  Co.,   95   111. 

statute  is  also  applied  in  case  of  App.   375;    Statute   citation,   Starr 

Pease  v.   Hunt,   60   111.  App.,   586.  &  Curtis  Annotated  Statutes  of  II- 

Statute    citations    Same    as    ante  linois,  Vol.   2,  p.  1833;    Hurd's  R. 

653.  S.    of   111.,    1905,   p.    1035. 

30—197   111.,  page  303. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.        583 

competency  of  a  witness,  in  any  proceeding  that  such  exists 
either  by  the  common  law  or  by  statutory  enactment  granting 
such  a  right  to  testify.^^  jf  [^  jg  desired  to  challenge  the  com- 
petency of  evidence,  a  ruling  must  be  required,  and  objection 
and  exception  taken.^s 

658.  Witnesses  when  not  competent,  against  trustees,  rep- 
resentatives, heirs,  legatees  and  devisees.  Section  2  of  the 
Evidence  and  Deposition  Act  provides:  **No  party  to  any  civil 
action,  suit  or  proceeding,  or  person  directly  interested  in  the 
event  thereof,  shall  be  allowed  to  testify  therein  of  his  own 
motion,  or  in  his  own  behalf,  by  virtue  of  the  foregoing  section, 
when  any  adverse  party  sues  or  defends  as  the  trustee  or  con- 
servator of  any  idiot,  habitual  drunkard,  lunatic  or  distracted 
person,  or  as  the  executor,  administrator,  heir,  legatee  or  devisee, 
unless  when  called  as  a  witness  by  such  adverse  party  so  suing 
or  defending,  and  also  except  in  the  following  cases,  namely: 
First — In  any  such  action,  suit  or  proceeding,  a  party  or  inter- 
ested person  may  testify  to  facts  occurring  after  the  death  of 
such  deceased  person,  or  after  the  ward,  heir,  legatee  or  devisee 
shall  have  attained  his  or  her  majority.  Second — When,  in 
such  action,  suit  or  proceeding,  any  agent  of  any  deceased  per- 
son shall,  in  behalf  of  any  person  or  persons  suing  or  being 
sued,  in  either  of  the  capacities  above  named,  testify  to  any 
conversation  or  transaction  between  such  agent  and  the  opposite 
party  or  party  in  interest,  such  opposite  party  or  party  in  inter- 
est may  testify  concerning  the  same  conversation  or  transaction. 
Third — ^Where,  in  any  such  action,  suit  or  proceeding,  any  such 

32 — Easterly    Harvester    Co.    v.  Ill,    App.    511;    City    of    Chicago, 

Hill,     36    111.    App.    99;     Butz    v.  v.  Nodeck,   202  111.   270;    Jernberg 

Schwartz.  32  111.  App.  156;   Trun-  v.   Mix,    199   111.   258;    Keating  v. 

key  V.  Hedstrom,  33  111.  App.  397;  Cornell   Bros.,   104   111.   App.   450; 

Sprigg    V.     Grannemann,    36     111.  Thomson   v.    Black,   200    111.    469; 

App.    102;    Deuterman   v.   Ruppel,  Insurance  Co.  v.  Johnson,  200  111. 

103  111.  App.  110;   Same  v.  Same,  362;      Columbia     Manfg.     Co.     v. 

200  111.  201.  Hastings,  121  Fed.  Rep.  330;  Starr 

33 — Railroad    Co.    v.    Randolph,  &  Curtis  Annotated  Statutes  of  II- 

199  111.  129;   Dady  v.  Condit,  104  linois,  Vol.  2,  p.  1834;   Kurd's  R. 

S.  of  111.,  1905,  p.  1035. 


584  THE  LAW  OF  ESTATES. 

party  suing  or  defending,  as  aforesaid,  or  any  person  having  a 
direct  interest  in  the  event  of  such  action,  suit  or  proceeding, 
shall  testify  in  behalf  of  such  party  so  suing  or  defending,  to 
any  conversation  or  transaction  with  the  opposite  party  or  party 
in  interest,  then  such  opposite  party  or  party  in  interest  shall 
also  be  permitted  to  testify  as  to  the  same  conversation  or  trans- 
action. Fourth — Where,  in  any  such  action,  suit  or  proceed- 
ing, any  witness,  not  a  party  to  the  record,  or  not  a  party  in 
interest,  or  not  an  agent  of  such  deceased  person,  shall,  in  behalf 
of  any  party  to  such  action,  suit  or  proceeding,  testify  to  any 
conversation  or  admission  by  any  adverse  party  or  party  in 
interest,  occurring  before  the  death  and  in  the  absence  of  such 
deceased  person,  such  adverse  party  or  party  in  interest  may 
also  testify  as  to  the  same  admission  or  conversation.  Fifth — 
When,  in  any  such  action,  suit  or  proceeding,  the  deposition  of 
such  deceased  person  shall  be  read  in  evidence  at  the  trial,  any 
adverse  party  or  party  in  interest  may  testify  to  all  matters  and 
things  testified  to  in  such  deposition  by  such  deceased  person, 
and  not  excluded  for  irrelevancy  or  incompetency.  "3-* 

659.  Who  are  interested  parties.  Such  are  usually  devel- 
oped by  the  pleadings,  or  at  the  hearing  or  trial  of  an  issue. 
Those  persons,  who,  at  common  law,  were  incompetent  as  inter- 
ested parties  in  themselves  or  by  being  parties  to  the  record, 
are  still  incompetent  under  the  first  clause  of  the  second  section 
of  the  statute  quoted,  relating  to  evidence  and  depositions. 
Interest  or  want  of  interest  of  parties,  directly  and  indirectly 
as  existing  at  common  law  are  recognized  by  the  final  authori- 
ties of  this  State.'^    The  disqualifying  interest  at  common  law, 

34 — Law  1867,  p.  183,  section  2.  Vol.  5.  pp.  254-255,  and  cases  cited; 

Section   2,   chapter   51,    "Evidence  Kurd's  R.  S.  of  111.,  1905,  pp.  1034- 

and  Depositions."     Starr  &  Curtis  1035. 

Annotated  Statute  of  Illinois,  with  35 — King  v.  Worthington,  70  111. 

Jones  &  Addington's  Supplements  114;    Kent  v.  Mason,   79  111.   540; 

thereto,   Vol.   2,   pp.   1822   to   1834  Remann    v.    Buckmaster,    85    111. 

inclusive,    and    cases    cited;    Vol.  405;    McClure   v.    Otrich,    118    111. 

4,  pp.  605  to  608,  and  cases  cited;  325. 


EVIDENCE  AND  DEPOSITIONS,   UNDER   STATUTE.        585 

was  some  legal,  certain  and  immediate  interest.^^  It  was  suffi- 
cient if  the  interest  exists,  and  it  matters  not  whether  the  witness 
has  knowledge  of  it  or  no^.^^  The  test  being,  will  the  Avitness 
either  gain  or  lose  by  the  operation  and  effect  of  the  judgment ; 
or  will  the  record  be  evidence  for  or  against  him  in 
another  siction.^^  His  interest,  however,  must  be  in 
favor  of  the  party  calling  him  as  a  witness;  if  adverse 
to  such,  or  if  his  evidence  was  considered  as  evenly 
balanced  he  was  a  competent  witness.^^  The  clear  distinction  of 
the  rule  in  this  regard,  as  between  courts  of  law  and  equity 
relating  to  the  competency  or  incompetency  of  parties  to  the 
record  as  witnesses,  will  be  found  in  the  case  of  Dodgson  v. 
Henderson.  Where  the  defendant  is  competent  to  testify  against 
some,  but  not  all  the  complainants,  his  evidence  will  be  con- 
sidered against  the  complainant  as  to  whom  he  is  competent.^^ 
Where  it  appears  the  witness'  interest  is  equally  balanced  he  is 
competent.'*^  And  to  the  same  effect  defining  common  law  wit- 
ness as  though  no  statutory  act  had  been  passed  as  to  their 
qualifications;  under  the  statute  itself,  that  is,  the  excep- 
tions in  the  statute,  adds  to  the  list  witnesses  that  are  made 
competent.'*-  The  authorities  being  numerous,  we  hereafter 
distinguish  the  witnesses  by  the  authorities  holding  them  in- 
competent and  competent  to  testify  in  the  particular  case  where 
the  issue  is  raised. 

660.    Incompetent  witnesses.    The  cases  under  this  head  are 
very  numerous,  depending  largely  upon  the  facts  developed  in 

36— €ombs   v.   Bradshaw,    6    111.  121;    Hurlbut  v.   Meeker,   104   HI. 

App.    121;     1    Greenleaf    on    Evi-  542;    Ire  re  Bonse,  18  111.  App.  438; 

deuce,  386,  387,  388,  389.  Sconse  v.  Henderson,  102  111.  376. 

37 — Flint   V.    McClung,   4    Gilm.  40 — Dodson    v.    Henderson,    113 

(111.)    569.  111.  363;  Weingartner  v.  Pabst,  115 

38 — New    England    Ins.    Co.    v.  111.  413;    Meister  v.  Zimmermann, 

Wetmore,  32   111.  246;   McClure  v.  7   111.   App.   160. 

Otrich,  118  W.  325.  41— Sconse    v.    Henderson,    102 

39— Stokes    v.    Kane,    4    Scam.  Ill,   376;    Dodgson   v.    Henderson, 

(III.)    16;   Brooks  v.  McKlnney,  4  113    111.    363. 

Scam.  (111.)  312;  Bell  v.  Farrar,  41  42— Bradshaw  v.  Combs,  102  111. 

111.    400;    Brown   v.   Hurd,   41   111.  428;  Ailing  v.  Brazee,  27  111.  App. 

5^8. 


586  THE  LAW  OF  ESTATES. 

each  particular  case.  It  may  be  safely  said  the  statute  quoted 
aforesaid,  allowing  a  party  to  be  a  witness,  is  seemingly  broad 
yet  much  restricted  in  its  application.  It  is  said  in  the  case  of 
Boynton  v.  Phelps :^^  "The  second  section  of  the  act  of  1867 
clearly  contemplates  that  the  parties  to  a  suit,  when  one  of  them 
is  offered  as  a  witness  against  the  other,  shall  occupy  equal 
ground ;  that  both  shaU  be  present  in  the  flesh,  or  have  the  power 
to  be  present.  If  it  were  not  so,  the  greatest  injustice  would 
be  the  result.  A  swift  and  willing  living  witness  would  have 
the  whole  case  in  his  own  power,  and  a  door  to  perjury  would 
be  open,  so  wide  and  so  inviting  as  to  require  great  moral  firm- 
ness to  decline  an  entrance  into  it.  It  would  be  a  temptation 
very  many  would  not  be  able  to  resist."  While  both  parties 
to  a  transaction  are  living  they  are  upon  a  perfect  equality, 
and  can  each  testify.  When  one  is  dead  the  other  is  not  per- 
mitted to  give  evidence,  and  thus  take  advantage  of  the  heirs 
of  the  deceased,  who  are  wholly  ignorant  of  the  facts.*^  In 
the  application  of  this  general  statutory  rule  of  justice  to  the 
living  and  dead,  the  various  cases,  as  they  develop  certain  facts, 
become  special  cases  in  point,  where  the  incompetency  of  wit- 
nesses to  testify  to  the  particular  matters  in  controversy  appear 
in  each  case.  Where  a  person,  long  after  the  execution  and 
delivery  of  a  deed  for  land,  makes  a  second  conveyance  of  the 
same  premises  to  another,  who  files  a  biU  against  the  heirs  of 
the  prior  grantee  to  have  the  first  deed  set  aside,  on  the  ground 
it  was  delivered  on  conditions  which  were  never  performed, 
and  the  bill  is  brought  for  the  mutual  benefit  of  the  second 
grantee  and  the  grantor,  the  latter  was  held  not  to  be  a  compe- 
tent witness  for  the  complainant  against  the  heirs  of  the  prior 
grantee,  to  prove  the  grounds  on  which  the  first  deed  sought 
to  be  avoided.^^    And  it  is  held  in  a  suit  by  an  executor,  upon 

43—52  111.,  page  219.  Pyle  v.  Oustatt.  92  111.  215;  Lang- 
44— Merrill  v.  Atkins,  59  111.  20;  ley  v.  Dodsworth,  81  111.  86;  Gal- 
Fisher  V.  Fisher,  54  111.  235;  Ma-  braith  v.  McLain,  84  111.  379;  Mc- 
honey  v.  Mahoney,  65  111.  406;  Cann  v.  Atherton,  106  111.  33; 
Alexander  v.  Hoffman,  70  111.  115;  Plain  v.  Roth,  107  111.  588. 
Ruckman  v.  Alwood,   71   111.   155;  45 — McCann  v.  Atherton,  106  IlL 

33. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.        587 

a  promissory  note  to  the  testator,  that  the  principal  maker  is 
not  a  competent  witness  for  a  surety,  to  prove  a  contract  with 
the  testator  for  extending  the  time  of  payment,  even  though 
his  default  had  been  taken.^*'  It  appears  that  a  plaintiff  de- 
scribed himself  as  an  administrator;  and  the  facta  established, 
that  the  plaintiff  could  maintain  the  suit  in  his  own  name,  and 
therefore  it  was  unnecessary  for  him  to  describe  himself  as 
administrator.  And  under  such  state  of  facts,  it  was  held,  the 
plaintiff  could  not  cut  off  the  defendant  from  being  a  witness.*'^ 
Where  a  bill  in  chancery  was  filed  by  a  married  woman,  against 
the  heirs  and  administrator  of  a  deceased  party  to  have  a  deed, 
executed  by  her  and  her  husband  to  the  intestate,  set  aside  for 
fraud,  etc.,  it  was  held  the  complainant  and  her  husband  were 
both  incompetent  witnesses  to  prove  the  facts  alleged  in  her 
bill.^8  Where  a  bill  for  specific  performance  was  filed,  the 
agent  of  the  vendor  is  not  a  competent  witness,  after  the  ven- 
dee's death,  as  against  his  widow  and  heirs,  to  testify  that  a 
payment,  indorsed  by  him  upon  the  contract,  was  made  by 
mistake,  and  that  it  was  not,  in  fact  made.***  A  party  is  not  a 
competent  witness  against  an  opponent  who  is  defending  as  an 
heir  in  a  suit  growing  out  of  a  transaction  with  his  ancestor.^* 
In  equity  to  enforce  a  resulting  trust,  against  an  administrator, 
and  the  heirs  of  an  estate,  it  was  held:  The  complainant  was 
not  competent  to  testify,  in  his  own  behalf,  as  to  transactions 
and  conversations  with  the  deceased  in  his  lifetime.^^  In  a  suit 
for  partition  and  assignment  of  dower  by  heir  of  intestate 
against  the  widow  of  such  intestate,  it  was  held:   That  she  was 

46— Langley    v.    Dodsworth,    81  Battell,  83  111.  320-321;   Galbraith 

111.  86;  Dodgson  v.  Henderson,  113  v.  McLain,  84  111.  379;   Ferbrache 

111.,  363.  V.   Ferbrache,   110   111.    210;    Dyer 

47— Roberts  v.  Pierce,  79  111.  378.  v.    Hopkins,    112    111.    168;    Show 

48— Crane  v.  Crane,  81  111.  166.  v.  Schoonover,  130  111.  448. 

49 — 1     Greenleaf    on    Evidence,         50 — Ebert    v.    Cording,    116    111. 

sections  417,  394  to  397;  Frink  v.  216;     Powell    v.    Powell,    114    111. 

People,    43    111.    27;     Walters    v.  334;    Holderman  v.  Gray,  130  111. 

Witherell,    43    111.    388;    Chicago,  442. 

Rock   Island   &   Pacific  R.   R.   Co.         51— Kelsey    v.    Snyder,    118    111. 

V.  Welch,   24    111.    31;    Bruner   v.  544. 


588  THE  LAW  OF  ESTATES. 

not  competent  to  prove  advances  by  herself  to  the  intestate,  and 
of  existence  of  lien  therefore.^^  The  deposition  of  a  complainant, 
taken  after  the  death  of  a  defendant,  in  a  suit  in  equity  t«  set 
aside  a  deed,  and  for  rent,  is  incompetent,  and  should  not  be 
read  as  evidence  against  such  deceased  defendant  heir.^^  A 
daughter  of  a  deceased  person  claiming  property  under  contract 
with  the  mother  during  her  lifetime,  is  an  incompetent  witness 
under  bill  filed  by  the  other  heirs  to  subject  such  property  to 
distribution,^^ 

661.  Incompetent  witnesses  continued.  Where  A  trans- 
ferred his  bond  for  a  deed  to  B,  without  consideration,  thereby 
making  the  latter  his  trustee,  and  procured  B  to  make  payment 
of  the  purchase  money,  and  had  the  vendor  convey  the  prop- 
erty to  B,  who  died,  having  devised  all  his  estate  to  C,  and 
the  executor  of  C  filed  a  bill  against  A  and  his  wife  to  fore- 
close the  deed  as  a  mortgage,  it  was  held:  That  A  was  not  a 
competent  witness  in  his  own  behalf  as  to  any  transaction  be- 
tween himself  and  B ;  nor  could  he  testify  in  his  own  interest 
when  called  by  his  co-defendant,  his  wife.^^  Where  application 
Iv^as  made  to  the  county  court  to  require  an  executor  to  disclose 
assets,  it  was  held,  that  the  executor  was  not  a  competent  wit- 
ness as  to  fact  occurring  before  the  death  of  the  deceased.^® 
And  in  equity,  to  restrain  an  administrator  from  paying  over 
certain  money  to  one  of  the  heirs  of  the  deceased,  who  claimed 
under  an  alleged  parol  contract  between  herself  and  husband 
and  decedent  and  her  mother,  made  shortly  before  the  mother's 
death,  it  was  held,  that  the  husband  of  the  claimant  was  an 
incompetent  witness,  to  prove  the  transaction.^^  In  an  action 
by  an  administrator  on  a  note,  where  it  was  sought  to  prove 
a  contract  between  the  defendant  and  the  deceased  for  board- 

52— Barnard  v.  Barnard,  119  111.  55— Stewart  v.  Fellows,  128  111. 
92.  480. 

53— Dean  v.  Long,  122  111.   447.         56— Booth  v.  Tabbernor,  23   111. 

54— Way  V.  Harriman,   126   111.     App.   173. 
132.  57 — Harriman    v.    Sampson,    23 

111.  App.   159. 


EVIDENCE  AND  DEPOSITIONS,   UNDER  STATUTE.        589 

ing  of  the  decedent 's  parents,  it  was  held :  The  wife  of  the  de- 
fendant was  not  competent  to  testify  as  to  such  fact.^^  Com- 
plainants in  a  foreclosure  suit  against  heirs  of  a  mortgagor 
cannot  testify  to  the  amount  due  thereunder.^^  A  divorced  wife 
of  a  deceased  party,  who  filed  her  bill  of  review  to  set  aside 
the  decree  which  divorced  her,  was  held,  not  a  competent  wit- 
ness where  the  defendants  were  the  administrator,  widow  and 
heir  of  such  deceased  husband.^*^  A  donee  is  incompetent  as  a 
witness,  where  complainants  sue  as  heirs.^^  An  executor,  is 
incompetent  to  testify  against  contesting  heirs,  where  his  in- 
terest lies  in  sustaining  the  will  in  question.^^  ^  grantee  of  an 
ancestor  is  not  a  competent  witness  in  suit  by  him  as  such.^^ 
So  also,  one  seeking  to  establish  the  fact  of  heirship  to  deceased, 
is  not  a  competent  witness  in  a  case  where  adverse  parties  de- 
fend as  heirs  of  such  deceased.''^  The  statute  in  this  regard 
was  intended  to  protect  the  estates  of  deceased  persons  from 
the  assaults  of  strangers,  and  relates  to  proceedings  wherein 
the  decision  sought  by  the  party  so  testifying  would  tend  to 
reduce  or  impair  the  estate,  and  does  not  relate  to  the  relative 
rights  of  heirs  or  devisees  as  to  the  distribution  of  an  estate 
in  proceedings  by  which  the  estate  itself  is  in  no  event  to  be 
reduced  or  impaired.^*^  A  stockholder  of  a  corporation  is  not 
a  competent  witness  in  a  suit  by  a  corporation  against  the  repre- 
ss—Gifford  V.  Wilkins,  24  111.  111.  372.  And  see  also  the  fol- 
App.  367.  lowing  cases  where  witnesses  were 

59 — Reed  v.  Kidder,  70  111.  App.  held  competent  or  incompetent 
500.  on  some  issue  raised  in  the  case. 

60— Maher  v.  Trust  Co.,  95  111.  Blanchard  v,  Blanchard.  191  111. 
App.    375.  453;  Fletcher  v.  Shepherd,  174  111. 

61— Sayles  v.  Christie,  187  111.  268;  Roberts  v.  Woods,  82  111.  App. 
442.  648;   Same  v.   Same,  185  111.  489; 

62— Bardell  v.  Brady,  172  111.  Ramsey  v.  Nichols,  73  111.  App. 
424;  Anderson  v.  Anderson,  191  651;  Pearce  v.  Pearce,  184  III. 
111.  101;  Fleming  v.  Mills,  182  111.  289;  Goff  v.  Ins.  Co.,  92  111.  App. 
469.  211;  Yokem  v.  Hicks,  93  111.  App. 

63— Leavitt  v.  Leavitt,  179  111.  670;  Russell  v.  Happ,  76  111.  App. 
89.  419. 

64 — Lawrence  v.  Lawrence,  164        65 — Pigg  v.  Carroll,  89  111.  205; 

Fleming  v.  Mills,  182  111.  469. 


590  THE  LAW  OF  ESTATES. 

sentatives  of  a  deceased  party .^^  An  adverse  party  must  sue 
in  a  representative  capacity  to  render  opposite  party  incom- 
petent.^^ And  so  it  is  held,  the  question,  whether  a  witness 
has,  or  has  not,  a  disqualifying  interest,  in  a  particular  case, 
is  to  be  determined  by  ascertaining,  whether  he  would  gain  or 
lose  by  a  decree  setting  aside  the  will.^^  The  interest  of  a  party 
may  lie  solely  in  his  liability  for  costs,  in  event  of  defeat.^^ 

662.  When  party  competent  to  testify  in  his  own  behalf — 
competent  witnesses  generally.  A  suit  against  grantees  of  a 
deceased  person,  which  is  not  defended  by  the  executor,  heirs, 
legatees  or  devisees  of  the  deceased,  is  not  one  in  which  the 
plaintiff  is  prohibited  by  the  statute  from  testifying  in  his  own 
behalf  as  to  personal  transactions  with  the  deceased.'^^  A  plain- 
tiff is  competent  to  testify  in  his  own  behalf,  where  defendant 
is  not  defending  in  any  pecuniary  capacity.'''^  A  claimant,  who 
is  prosecuting  a  claim  against  the  estate  of  a  deceased  person, 
is  a  competent  witness  in  his  own  behalf,  in  relation  to  what 
was  done  and  said  at  a  settlement  between  him  and  the  executor 
of  the  estate,  about  which  a  witness  produced  by  the  executor 
has  testified.  It  is  a  general  rule  relating  to  conversations,  that 
when  one  party  introduces  a  part,  the  other  may  call  for  and 
have  the  entire  conversation,  so  far  as  it  relates  to  the  subject 
matter  in  dispute.'^  ^  The  administrator  is  a  competent  witness 
for  the  defense,  in  a  suit  against  the  estate  represented  by  him, 
to  testify,  what  he  knew  of  the  case  before  and  after  he  became 
administrator  did  learn.'^s  One  heir  is  a  competent  witness 
against  another  in  partition  proceedings,  where  one  heir  claims 
the  entire  title,  on  the  ground  that  the  ancestor  held  the  legal 

66— Albers    Commission    Co.    v.  69— Smith  v.  Smith,  168  111.  495. 

Sessel,    193    111.    155;     Christian-  70— Goelz  v.  Goelz,  157  111.  33; 

sen     V.     Dunham      Towing     and  Gage  v.   Eddy,   179   111.   496. 

Wrecking  Co.,  75  111.  App.  274.  71 — Fireman's  Ins.  Co.  v.  Peck, 

67— McGrew  v.  McGrew,   93  111.  126   111.   493. 

App.  82.  72— Strauther  v.  Mohler,  80  111. 

68— Campbell   v.    Campbell,   130  23. 

111.   466.  73— Steel,  Adm.,  v.  Clark,  Adm., 

77    111.    475. 


EVIDENCE   AND   DEPOSITIONS,   UNDER   STATUTE.         591 

title  in  trust  for  him,  and  the  other  defendant  disclaiming  any 
interest,  the  latter  will  be  a  competent  witness  for  his  co-de- 
fendant, and  against  the  petitioner,  both  at  common  law  and 
under  the  statute.''*  In  equity,  the  principal  on  a  promissory 
note  is  a  competent  witness  in  a  suit  by  the  surety  against  the 
administrator  of  the  payee,  to  enjoin  the  collection  of  a  note, 
on  behalf  of  the  surety,  to  prove  a  valid  contract  by  the  payee 
extending  the  time  of  payment  to  the  principal  without  consent 
of  the  surety  J  ^  A  widow,  filed  a  bill  in  equity,  for  herself  and 
heirs  to  establish  a  trust  for  the  estate.  Held :  She  was  a  com- 
petent witness  for  herself  and  the  heirs  as  to  all  matters  affect- 
ing the  transaction  of  which  she  has  personal  knowledge.  But 
the  defendant  in  such  suit,  is  not  a  competent  witness,  as  he 
is  directly  interested  in  the  result  of  the  suit  as  sole  defendant; 
the  adverse  parties  suing  as  heirs  at  law  of  the  deceased,  defend- 
ant was  therefore  incompetent  to  testify  to  anything  but  mat- 
ters falling  within  the  exceptions  to  section  2,  chapter  51,  Ke- 
vised  Statutes.'^®  A  mere  scrivener  employed  by  deceased  to 
draw  a  note  and  mortgage,  is  not  the  agent  of  the  deceased,  and 
his  testimony  is  competent  concerning  transaction  between  the 
widow  and  her  deceased  husband,  as  to  what  was  said  about  an 
ante-nuptial  contract  between  the  latter  two.'^''  In  a  case  for 
specific  performance,  where  special  conditions  and  circumstances 
appear  in  the  record,  a  daughter  of  testator  was  held  competent 
and  permitted  to  testify,  as  such  was  not  entitled  to  the  land 
mentioned  in  the  will  and,  to  prove  the  contract  upon  which 
the  relief  under  bill  for  specific  performance  was  sought, 
such  having  no  interest  in  the  result.  The  rule  as  laid 
down,  being:     "The  true  test  of  the  competency  of  a  witness, 

74 — Scheerer    v.    Scheerer,    109  111.  363;   Davis  v.  People,  1  Gilm. 

111.    11;    Smith    v.   West,    103    111.  (111.)    409;    Grossman  v.  Wohllen- 

332;  Kershaw  v.  Kershaw,  102  111.  hen,  90  111.  537. 

307;   Pigg  V.  Carroll,  89  111.  205;  76— As  to  statute  cited  see  ante 

Long   V.   Long,   19    111.   App.   383;  658   and  notes;    Powell  v.  Powell, 

Treleaven  v.  Dixon,  119  111.  548.  114    III.    334, 

75 — Bradshaw  v.  Combs,  102  111.  77 — Spencer    v.    Boardman,    118 

428;    Dodgson   v.    Henderson,    113  111.  553. 


592  THE  LAW  OF  ESTATES. 

when  challenged  on  the  ground  of  interest,  is,  whether  he  will 
gain  or  lose  by  the  direct  legal  operation  and  effect  of  the  judg- 
ment in  the  case  in  which  he  is  called  to  testify,  or  whether 
the  record  will  be  evidence  for  or  against  him.'^^  In  a  cause 
of  action  which  accrued  more  than  five  years  before  the  bring- 
ing of  the  suit,  at  which  time  the  claimant  first  learned  he  had 
a  right  of  action  against  decedent's  estate,  he  was  held  to  be 
competent  to  testify  to  facts  occurring  after  the  death  of  the 
intestate  having  reference  to  his  acquiring  knowledge  of  his 
rights.'^  So  a  widow  was  held  a  competent  witness  to  prove 
that  after  her  husband's  death,  she  found  a  deed  to  him  among 
his  papers,  as  tending  to  show  a  delivery  to  him,  that  being  "a 
fact  occurring  after  the  death  of  such  deceased  person.  "^"^ 

663.  Competent  witnesses  continued.  The  defendant  is  a 
competent  witness  in  a  suit  by  a  widow  for  causing  her  hus- 
band's death  by  selling  him  intoxicating  liquors.si  A  ward  is 
a  competent  witness,  in  an  action  against  sureties  on  guardian's 
bond,  to  testify  whether  deceased  guardian  ever  paid  any  of  the 
money  due  from  him,  and  whether  the  guardian  was  ever  con- 
stituted agent  to  handle  the  same.'^^  The  maker  of  a  note  was 
held  to  be  a  competent  witness,  as  to  conversations  or  transac- 
tions with  him  testified  to  by  agents  at  plaintiff's  instance,  the 
agents  of  the  payee  having  a  direct  interest  in  the  result  of  the 
suit.s^  An  executor  under  a  will  who  is  also  a  devisee  of  certain 
lands  in  trust  may  disclaim  his  interest  in  the  trust  property 
and  thus  become  a  competent  witness-^'*  A  right  not  claimed 
by  inheritance,  sought  to  be  enforced  by  an  heir,  as  to  facts  oc- 
curring during  the  minority  of  the  plaintiff,  does  not  exclude 
the  evidence  of  an  adverse  party  to  the  suit.^^     In  an  action 

78— McClure    v.    Otrich,    118    111.  83— Butz    v.    Schwartz,    32     III. 

320.  App.  156;    English  v.  Landon,  181 

79— Vigers   v.    Bannon,    118    111.  111.  618. 

334.  84 — Campbell    v.    Campbell,    130 

80— Griffin  V.  Griffin,  125  111.  430.  111.  466;    Smith  v.  Smith,  168  111. 

81— Regent  v.  Bell,  77  111.  593.  493. 

82_people    v.    Borders,    31    111.  85— Seago  v.  People,  21  111.  App. 

App.  426.  283. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.        593 

by  the  assignee  of  a  certificate  of  stock  against  a  corporation 
to  recover  damages,  for  the  wrongful  refusal  of  the  defendant  to 
allow  a  transfer  of  the  stock  on  its  books;  it  was  held:  The 
death  of  the  original  holder  of  such  certificate  does  not  render 
the  plaintiff  incompetent  as  a  witness,^^  An  interest  consisting 
of  inchoate  dower  right,  does  not  render  witness  incompetent.^'' 
The  interest  of  a  party  will  be  determined  by  matters  of  sub- 
stance rather  than  by  those  of  form.^^  Where  one  sues  or  de- 
fends as  a  grantee  of  executor,  the  party  in  interest  is  a  com- 
petent witness.^^  A  daughter  of  a  complainant  by  a  former 
husband  has  not  such  an  interest  in  the  event  of  a  suit  seeking 
to  establish  a  trust  in  favor  of  her  mother  against  the  heirs  of 
her  deceased  step-father,  as  to  render  her  incompetent  under  the 
statute.^^  The  widow  of  the  deceased  is  a  competent  witness 
in  a  suit  between  legatees  and  the  executor,  the  result  of  which 
will  not  affect  her  financially,  and  where  it  appears  she  has  no 
interest.^i  The  son  of  a  grantee  does  not  defend  as  heir  in 
a  suit  to  set  aside  the  deed  and  for  partition,  so  as  to  preclude 
the  complainants  from  testifying  against  him  under  section  2 
of  the  Evidence  Act,  where  the  validity  of  the  deed  as  well  as 
the  complainant's  title  rests  upon  a  will  under  which  they  all 
claim.92  Immaterial  evidence  may  be  competent  by  virtue  of  the 
other  party  to  the  cause  having  introduced  such,  evidence  as  to 
render  it  essential  by  way  of  contradiction-^^ 

664.  Administrators  as  witnesses.  Independent  of  his  of- 
fice as  administrator,  if  he  has  no  interest  in  the  subject-matter 
of  the  litigation  and  his  testimony  does  not  relate  to  matters 
growing  out  of  his  administration,  but  to  affairs  occurring  be- 

86— Fireman's  Ins.  Co.  v.  Peck,  91— Tanton    v.    Keller,    167    III. 

27  111.  App.  91.  144. 

87— Pain  v.  Farson,  179  111.  196.  92— Fleming    v.    Mills,    182    111. 

88— Bardell    v.    Brady,    172    111.  469;    Pigg  v.  Carroll,  89   111.   205; 

424.  Mueller  v.  Rebhan,  94  111.  142. 

89— Gage  v.  Eddy,  179  111.  495.  93— Matthews    v.    Granger,    196 

90— Boyd  V.  Boyd,  163  111.  614.  111.    168;     Illinois    Life    Assn.    v. 

V/ells,  200  III.  451. 
38 


594  THE  LAW  OF  ESTATES. 

tween  him  and  third  persons,  parties  litigant  should  not  be  de- 
prived of  his  testimony  simply  by  reason  of  his  accepting  the 
office  of  administrator.'''^  Where  an  administratrix  is  suing 
to  recover  money  in  the  hands  of  an  officer  of  the  court  which 
she  claims  as  an  asset  of  her  intestate,  such  contestant  is  the 
adverse  party  within  the  meaning  of  the  statute,  and  the  ad- 
ministratrix is  a  competent  witness.^^  An  alleged  creditor  of  a 
deceased  person,  who  has  been  appointed  administrator  of  such 
person,  under  the  statute  authorizing  the  appointment  of  cred- 
itors under  certain  circumstances,  is  not  competent  to  testify  as 
to  transactions  between  himself  and  the  deceased  in  a  proceed- 
ing for  his  removal  commenced  by  an  heir.^^  Where  an  admin- 
istrator testifies  as  to  admissions  of  defendant  during  decedent's 
life-time,  the  defendant  may  testify  as  to  the  same.'''^  Where 
certain  evidence  was  proffered,  such  was  held  admissible.^^ 

665.  Admissions  and  declarations.  As  a  general  rule,  ad- 
missions should  be  made  in  the  presence  of  the  parties  sought 
to  be  bound  thereby;  and,  by  some  one  legally  capable  of  mak- 
ing the  same.  Admissions  if  made  by  a  child  of  tender  years, 
should  be  received  more  cautiously  on  account  of  age,  than  the 
admissions  of  an  adult.^^  The  admission  or  declaration  of  a 
grantor  after  he  has  parted  with  all  his  interest  in  the  laud 
the  subject  of  controversy,  will  not  be  received  in  evidence  to 
defeat  the  title  of  his  innocent  grantee.^  If  the  relation  of  law- 
ful marriage  has  actually  been  created,  the  subsequent  admis- 
sions of  the  wife  to  the  contrary,  no  matter  if  solemnly  and 
deliberately  made,  can  have  no  effect  to  dissolve  the  marriage 
tie  or  relieve  the  other  party  from  the  obligations  and  duties 


94— Yokem  v.  Hicks,  93  111.  App.  97— Penn  v.  Oglesby,  89  111.  110. 

670.  98— Brunner   v.    Battell,    83    111. 

95— Shea  v.   Doyle,  65  111.  App.  317;  Plain  v.  Roth,  107  111.  588. 

475;   111.  Cent.  R.  R.  Co.  v.  Rear-  99— Chicago    City    Ry.    Co.    v. 

don,  Adm.,  157  111.  378.  Tuohy,  196  111.  430. 

96 — Henderson  v.  Treadway,  69  1 — Holton    v.    Dunker,    198    IlL 

111.  App.  357.  412. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.         595 

of  a  husband  and  father.^  Where  the  answer  to  a  bill  in  chan- 
cery set  forth  certain  admissions  claimed  to  be  binding  the 
court  held,  such  answer  could  not  fairly  be  construed  to  admit 
charges  and  expenses  beyond  those  actually  covered  by  the  li- 
cense contract.^  The  admissions  by  an  agent  made  while  acting 
as  attorney  and  agent  in  conducting  the  affairs  of  his  principal, 
relating  to  a  transaction  then  pending  and  considered  part  of 
the  res  gestae  were  held  competent.'*  Where  admissions  were 
made  by  an  attorney  for  the  appellants  in  open  court  in  con- 
demnation proceedings,  in  effect,  conceding,  that  the  appellee 
company  had  power  and  capacity  to  exercise  the  right  of  emi- 
nent domain,  and  voluntarily  and  without  objection  entered 
upon  the  hearing  before  the  jury  of  the  issues  as  to  the  amount 
of  damages  to  which  appellants  were  entitled,  it  was  held :  Ap- 
pellants could  not  be  heard  to  insist  the  appellee  company  had 
not  the  right  and  power  to  acquire  property  by  the  process  of 
condemnation.^  And  where  settlement  \\dth  creditors  had  been 
made  and  deed  of  trust  and  notes  executed  in  pursuance  of 
the  same ;  and,  afterward  in  a  litigated  case,  the  deed  and  notes 
were  offered  in  evidence  and  objection  was  made  thereto,  it  was 
said:  "We  are  unable  to  see  why  the  evidence  was  not  com- 
petent on  the  theory  of  the  defense,  which  was,  that  all  the 
claims  held  by  appellant  and  others  against  the  defendant  were 
adjusted  by  the  execution  of  the  trust  deed  and  notes.  In  sup- 
port of  that  contention,  defendant  clearly  had  the  right  to  prove 
the  arrangement  and  show  what  was  done  by  way  of  carrying 
it  out, — that  is  proof  of  compliance  on  its  part."^  The  duly 
authenticated  transcript  of  the  proceedings  and  decree  contain- 
ing admissions  made  in  a  contested  litigation  involving  the  same 
subject-matter  as  the  case  at  bar,  and  between  the  same  parties, 

2 — Hutchinson     v.     Hutchinson,  5 — Sexton  v.  Union  Stock  Yards 

196  111.  432.  Co.,  200   111.  248,   and   cases  cited 

3 — Bates   Machine   Co.   v.   Cook-  in  the  opinion, 

son,  202  111.  256.  6 — Iroquois      Furnace      Co.      v. 

4— Hoffman   v.   Chicago  Title  &  Hardware  Co.,  201  111.  299. 
Trust  Co.,  198  111.  456. 


596  THE  LAW  OF  ESTATES. 

is  entitled  to  full  faith  and  credit,  and  is  properly  admitted  in 
evidence.  The  admission  of  a  fact  by  a  party  to  a  suit,  is  com- 
petent evidence,  no  matter  how  made;  and  where  the  statement 
or  declaration  of  a  party  is  made  in  a  bill  in  chancery,  the  bill 
is  competent  evidence  to  be  considered  by  the  jury,  who  are 
to  determine  the  weight  to  be  given  to  the  evidence.'^  A 
corporation  is  bound  by  a  contract  made  by  its  duly  authorized 
agents,  its  directors,  with  full  knowledge  of  what  they  were  do- 
ing, however  fraudulent  the  contract  may  be  in  its  operation, 
after  it  has  been  executed  by  the  parties  to  it.^  Where  the 
agent  of  an  insurance  company  is  intrusted  with  checks  and 
receipts  for  the  purpose  of  settling  a  death  claim,  the  agent's 
representations,  declarations  and  admissions  in  closing  up  the 
transactions,  if  made  at  the  time  and  constituting  part  of  the 
res  gestae,  are  binding  upon  the  company.^ 

666.  Agent — direct  and  implied.  The  burden  of  proving 
the  express  authority  of  an  agent,  or  such  authority  necessarily 
implied  from  his  employment  as  an  agent,  and  a  part  of  the  duty 
of  the  agency,  which  must  be  exercised  by  him  as  an  agent  to 
be  effective  at  all,  rests  upon  the  party  relying  on  the  agency 
express  or  implied.  He  who  asserts  agency  and  authority  as 
such  must  prove  it.^^  The  able  opinion  in  this  case  cited  in 
this  note  is  by  Chief  Justice  Magruder,  who  learnedly  and 
exhaustively  reviews  the  principal  text  writers  on  the  subject 
of  agency  relating  to  the  case  at  bar.  We  therefore  give  at  some 
length  the  points  decided,  and  the  authorities  reviewed.     Au- 

7 — Seymour  v.  Richardson  Fuel-  tional  Bank,  126  111.  584;  Republic 

ing  Co.,   103   111.   App.   625;    Litch  Life  Ins.  Co.   v.   Swigert,   135   111. 

V.    Clinch.   136   111.    410,   423,   425;  150;     Hinkley    v.    Reed,    182    111. 

Wadsworth  V.  Duncan,  164  111.  360-  440;   Weill  v.  Zache,   92   111.  App. 

366;    Smith    v.    Henline,    174    111.  296;   Ross  v.  Saylor,  104  111.  App. 

200;   The  "Benefactor,"   103  U.   S.  19. 

239;   The  "Puritan,"  94  Fed.  Rep.  9— Hartford    Life    Ins.    Co.    v. 

365.  Sherman,  223  111.  329. 

8— McNulta  V.  Corn  Belt  Bank,  10— Jackson   Paper  Co.  v.  Com- 

164  111.  451 ;  Darst  v.  Gale,  83  111.  mercial  National  Bank,  199  111.  151. 
137;  Hanford  Cil  Co.  v.  First  Na- 


EVIDENCE  AND  DEPOSITIONS,   UNDER  STATUTE.        597 

thority  of  an  agent  to  endorse  commercial  paper,  can  only  be 
implied  where  the  agent  would  be  unable  to  perform  the  duties 
of  his  agency  without  the  exercise  of  such  authority.     The  au- 
thority to  collect  debts  is  not  autliority  to  endorse  hills.     An 
agency  to  collect  bills  and  receipt  therefor  carries  no  implica- 
tion of  authority  to  endorse  negotiable  paper.     Party  relying 
on  implied  authority  must  have  knowledge  of  the  acts.     While 
authority  to  endorse  negotiable  paper  may  be  presumed  from 
acts  of  recognition  in  former  instances,  yet  those  acts  must  be 
known  to  the  party  setting  them  up,  and  if  he  accepts  a  check 
shown  upon  its  face  to  be  endorsed  by  an  agent,  he  must  prove 
that  the  facts  giving  color  of  authority  to  the  agent  were  known 
to  him.  What  acts  not  sufficient  to  raise  inference  of  authority 
to  endorse  checks.    That  a  party  accepting  a  check  endorsed  by 
an  agent  had  seen  the  agent  at  the  payee's  mill  engaged  in  man- 
aging its  business,  had  seen  him  opening  mail,  giving  orders  to 
the  men  and  countersigning  checks  drawn  by  the  treasurer  of 
the  company  to  pay  for  material  purchased  by  the  agent,  does 
not  justify  the  implication  that  he  had  authority  to  endorse 
checks.    Effect  of  possession  of  check.    That  the  superintendent 
of  a  manufacturing  company  has  a  check  in  his  possession  given 
in  payment  for  goods  purchased  of  such  company  by  a  cus- 
tomer, does  not  authorize  any  one  to  purchase  or  cash  the  same 
for  him  upon  his  endorsement  of  the  company's  name  thereon 
by  himself,  as  superintendent.    Effect  of  act  of  certifying  check. 
By  certifying  a  check  a  bank  assumes  the  duty  to  pay  the  check 
only  to  the  payee  or  upon  the  payee's  genuine  endorsement,  and 
having  direct  notice  of  the  endorser's  agency  from  his  signa- 
ture as  the  payee's  superintendent,  it  is  bound  to  take  notice 
of  the  limitation  of  his  authority.    Burden  of  showing  stranger's 
authority  to  endorse  check  is  upon  party  asserting  it.     The  bur- 
den of  showing  the  authority  of  a  stranger  to  a  check  to  endorse 
the  same  for  the  payee  is  upon  the  drawee,  if  he  would  escape 
liability  to  pay  it  over  again  to  the  payee  after  paying  it  upon 
an  endorsement  showing  upon  its  face,  that  it  was  not  made  by 


598 


THE  LAW  OF  ESTATES. 


the  payee.**  The  conversations  of  an  agent,  where  it  is  estab- 
lished he  is  acting  within  the  scope  of  his  autliority,  are  held 
competent.*  2  Presumptions  relating  to  agents  of  corporations 
are  the  same  as  relate  to  agents  of  individuals.  Authority  of 
corporate  officers,  is  limited  to  the  business  of  the  corporation 
by  ail  officer  not  foreign  to  the  corporate  powers.*^ 

687.  Written  instruments.  Written  proofs,  or  evidence,  are 
(1)  Records;  (2)  Ancient  deed  of  thirty  years'  standing  which 
prove  themselves;  (3)  Modern  deeds;  (4)  Other  writings  that 
must  be  attested  and  verified  by  parol  evidence  of  witnesses. 
The  one  general  rule  that  runs  through  all  the  doctrine  of  trials 
is  this,  that  the  best  evidence  the  nature  of  the  case  will  admit 
of  shall  always  be  required,  if  possible  to  be  had;  but  if  not 
possible,  then  the  best  evidence  that  can  be  had  shall  be  al- 
lowed.**    Written  documents  are  considered  primary  and  the 


11 — The  following  cases  support 
the  opinion  in  Jackson  Paper  Co. 
V.  Commercial  National  Bank,  cited 
as  note  (10):  Parsons  on  Con- 
tracts, Vol.  1,  6th  ed.,  p.  62; 
Mechem  on  Agency,  sees.  389-392; 
Daniel  on  Negotiable  Instruments, 
Vol.  1,  4th  ed.,  sees.  292,  293;  1 
Am.  &  Eng.  Ency.  of  Law,  2d  ed., 
p.  1002;  Boord  v.  M.  Ferst's  Sons  & 
Co.,  39  Fla.  381;  Gregory  v.  Loose, 
19  Wash.  599;  Dodge  v.  National 
Exchange  Bank,  30  Ohio  St.  1; 
Doubleday  v.  Kress,  50  N.  Y.  410; 
Smith  V.  Co-operative  Dress  Assn., 
12  Daly  304;  Atkinson  v.  St.  Croix 
Manf.  Co.,  24  Me.  176;  Middlesex 
County  Bank  v.  Hirsch  Bros.,  24 
N.  Y.  St.  297;  Graham  v.  United 
States  Savings  Inst,  46  Mo.  186; 
Smith  V.  Gibson,  6  Blackf.  370; 
Railway  Equipment  and  P.  Co.  v. 
Bank,  82  Hun.  9;  New  York  Iron 
Mine  v.  Bank  of  Negaunee,  39 
Mich.  644;  Vanbibber  v.  Bank  of 
Louisiana,  14  La.  Ann.  486;  Jack- 


son V.  Bank,  92  Tenn,  154;  Raw- 
son  V.  Curtiss,  19  111.  456;  Maxey 
V.  Heckethorn,  44  111.437;  St.  John 
V.  Redmond,  9  Porter,  432;  Cash  v. 
Taylor,  8  L.  J.  (O.  S.)  262;  Chitty 
on  Bills,  13th  Am.  ed.,  pp.  41,  42; 
Gage  Hotel  Co.  v.  Union  National 
Bank,  171  111.  531;  Metropolitan 
National  Bank  v.  Jones,  137  111. 
634;  Chicago  Electric  Light  Rent- 
ing Co.  V.  Hutchinson,  25  111.  App. 
476;  Commercial  National  Bank  v. 
Lincoln  Fuel  Co.,  67  111.  App.  166; 
Beattie  v.  National  Bank  of  Illi- 
nois, 174  111.  571;  Reynolds  v. 
Ferree,  86  111.  570;  Schmidt  v. 
Shaver,  196  111.  115;  Currie  v.  Syn- 
dicate, 104  111.  168. 

12— Pardridge  v.  Cutler,  104  111. 
App.  104. 

13 — National  Bank  v.  Nichols 
Shepard   Co.   223  111.  41. 

14 — 2  Cooley's  Blackstone,  p. 
367;  1  Greenleaf  on  Evidence,  sees. 
21,  142,  145,  570;  1  Stark  on  Evi- 
dence, sees.  93,  523;    Evidence  by 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.        599 

best  evidence;  such  afford  the  greatest  certainty  of  the  fact  in 
question.  The  instrument  in  writing  being  always  regarded  by 
the  courts  as  the  primary  or  best  possible  evidence  of  its  ex- 
istence and  contents.  If  the  execution  of  an  instrument  is  to 
be  proved,  the  primary  evidence  is  the  testimony  of  the  sub- 
scribing witness,  if  there  be  one.  Until  it  is  shown  that  the  pro- 
duction of  the  primary  evidence  is  out  of  the  party's  power,  no 
other  proof  of  the  fact  is  in  general  admitted.  All  evidence 
falling  short  of  this  degree  is  termed  "secondary."  The  dis- 
tinction refers  to  the  "quality"  and  not  to  the  strength  of  the 
proof. 1^  "Where  a  person  is  proved  to  have  destroyed  any  writ- 
ten instrument,  '  *  a  presumption  will  arise,  that,  if  the  truth  had 
appeared,  it  would  have  been  against  his  interest,  and  his  con- 
duct is  attributable  to  his  knowledge  of  the  circumstances.  The 
general  rule  is:  Omnia  praesumuntur  contra  spoliatorem."^^ 
An  altered  instrument  should  not  be  admitted  as  evidence  until 
it  is  shown  that  all  the  material  alterations  or  interlineations 
were  made  before  its  execution.^ '''  Where  alterations  were 
proved  to  have  been  made  to  the  entries  in  a  family  Bible,  such 
was  held,  not  to  establish  the  fact  of  heirship,  where  one  claimed 
to  be  an  adopted  daughter  under  such  altered  entry,  changing 
the  word  "only"  to  "adopted"  and  where  part  of  the  writing 
was  missing.  The  court  holding  in  such  ease,  a  child  taken  by 
a  husband  and  wife  and  raised  and  treated  by  them  as  their 
daughter,  but  not  legally  adopted  by  them,  cannot  inherit  from 
them  as  heir.i^  The  law  charges  a  party  with  notice  of  the  con- 
tents of  a  letter,  which  has  been  received  by  him.^^  And  a  let- 
ter press  copy,  where  the  foundation  is  properly  laid  and  made 

Cowen,  Hill  and  Edwards,  Vol.  2,  17— Landt  v.  McCullough,  103  111. 

gees.  475,  480.  App.  670,  and  cases  cited  in  opin- 

15 — 1    Greenleaf    on    Evidence,  ion. 

sec.  84 ;  1  Stark  on  Evidence,  sees.  18 — Crumley  v.  Worden,  201  111. 

641,  649.  115. 

16 — Winchell  v.  Edwards,  57  111.  19 — Michigan  Leather  Co.  v.  Fo- 

41;  Downing  v.  Plate.  90  111.  268;  ver,    104    111.    App.    269;    Central 

Anderson   v.    Irwin,   101   111.   411;  Lumber  Co.  v.  Keller,  201  111.  508; 

Tantor  v.  Keeler,  167  111.  144.  Baker  v.  Baker,  202  111.  612. 


600  THE  LAW  OF  ESTATES. 

for  its  introduction  is  admissible. ^°  As  to  the  use  of  memoranda 
and  its  effect  when  produced  at  the  request  of  a  party  who 
cross-examines  as  to  particular  interlineations  contained  there- 
in.21  Contents  of  minute  book  of  a  corporation  must  be  proved 
by  such  book,  or  a  duly  certified  copy  thereof,  notwithstanding 
such  book  is  without  the  State  of  Illinois.22  Photographs  are 
admissible. 23  But  such  are  incompetent  when  taken  a  long  time 
after  the  accident.^* 

668.  Book  accounts.  The  statute  relating  to  "evidence  and 
depositions,"  provides:  "Where  in  any  civil  action,  suit  or 
proceeding,  the  claim  or  defense  is  founded  on  a  book  account, 
any  party  or  interested  person  may  testify  to  his  account  book, 
and  the  items  therein  contained;  that  the  same  is  a  book  of 
original  entries,  and  that  the  entries  therein  made  were  made 
by  himself,  and  are  true  and  just;  or  that  the  same  were  made 
by  a  deceased  person,  or  by  a  disinterested  person,  a  non-resi- 
dent of  the  State  at  the  time  of  the  trial,  and  were  made  by 
such  deceased  or  non-resident  person  in  the  usual  course  of 
trade,  and  of  his  duty  or  employment  to  the  party  so  testify- 
ing; and  thereupon  the  said  account  book  and  entries  shall  be 
admitted  as  evidence  in  the  cause.  "25  Before  this  statute,  books 
of  account  were  admissible  only,  after  proof  of  person  keeping 
them  had  been  made.^^  Where  a  party  was  held  not  to  have 
brought  himself  within  the  requirements  of  the  statute  and 
where  account  books  were  held  incompetent.^^     The  common 

20 — Union  Surety  Co.  v.  Tenny,  dence  and   Deposition."     Starr   & 

200  111.  352.  Curtis  Annotated  Statutes  of  lUi- 

21 — ^Railway   Co.   v.    Story,    104  nois,    with    Jones    &    Addington's 

111.  App.   140.  Supplements    thereto.    Vol.    2,    p. 

22— Central      Electric      Co.      v.  1834;  Vol.  4,  p.  608;  Vol.  5,  p.  255, 

Sprague  Electric  Co.,  120  Fed.  Rep.  and  cases  cited  under  section  of 

928.  statute;  Kurd's  R.  S.  of  111.,  1905, 

23— City  of  Chicago  v.  Vesey,  105  p.  1035. 

111.  App.  195;  Railway  Co.  v.  Prast,  26— Kirby  v.  Watt,  19  111.  393; 

101  111.  App.  168.  Dodson  v.  Sears,  25  111.   513;   but 

24 — Railway  Co.  v.  Corson,  198  see  Ruggles  v.  Gratton,  50  111.  412. 

111.  103.  27— Bradley  v.   Gardner,   87   111. 

25— Section  3.  chapter  51,  "Evi-  App.  405;  McDavid  v.  Ellis,  78  111. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.        601 

law  is  not  abrogated,  but  enlarged  under  this  statute.^s  "Where 
the  witness  states,  that  the  accounts  are  correct,  it  is  sufficient.^^ 
Where  book  of  accounts  between  parties,  were  made  by  one 
party  in  the  presence  of  the  other,  they  are  competent  to  show 
the  state  of  the  account.^'^  If  person  who  made  entries  in  book 
account  has  no  personal  knowledge  of  their  correctness,  the  ac- 
count must  be  proved  by  persons  furnishing  the  items  in  the 
book,  or  by  other  satisfactory  evidence.^^  And  this  rule  is  ap- 
plied to  depositions  on  motion  to  strike  out.32  The  contents 
of  book  accounts  cannot  be  stated;  if  such  are  competent,  the 
book  itself  should  be  received  as  evidence.^^  The  entries  in  book 
account  of  **cash"  or  ** check"  charged,  without  connecting 
such  charge  with  the  particular  transaction,  does  not  indicate 
the  charge  represented  the  loan  of  that  much  money .^^  Where 
book  entitled  "Record  of  Sales"  contained  no  charges,  it  was 
held  inadmissible  as  original  evidence.^^  g^^  inventories  proved 
to  have  been  correctly  made  from  original  notations  that  were 
subsequently  lost  or  destroyed,  were  held  to  be  competent.^^ 
And  also  entries  in  book  made  from  time  slips,  the  day  after 
the  work  was  done,  were  held  competent  evidence,  and  admis- 
sible.37 

669.    Compulsory  production  of  books  for  inspection.    The 

statute  giving  a  right  to  the  inspection  of  books  in  certain  cases 

App.  383;    Chisolm  v.  Beaman  Ma-  538;    Redlich  v.   Bauerlee,   98   111. 

chine  Co.,  160  III.  113;  Marshall  v.  134;  Lowenthal  v.  McCormick,  101 

Coleman,  187  111.  58.  111.  143. 

28— Weigle  v.  Brautigaam,  74  111.  32— Boyd  v.  Yerkes,  25  111.  App. 

App.  291;  Bank  v.  Elledge,  99  111.  527. 

App.  308;   BDOks  v.  Funk,  85  111.  33— Schotte  v.  Puscheck,  79  111. 

App.  633.  App.  53;   Huddleson  v.  McCollum, 

29— Presbyterian  Church  v.  Em-  103  111.  App.  409. 

merson,    66    111.    269;     Ailing    v.  34— Rothchild  v.  Sessel,  103  III. 

Brazee,  27  111.  App.  595.  App.  283. 

30— McDavid    v.    Ellis,    78    111.  35— €airnes  v.  Hunt,  78  111.  App. 

App.   383.  422. 

31 — Stettauer   v.   White,   98   111.  36 — Railroad    Co.    v.    American 

72;   Sexton  v.  Brown,  36  111.  App.  Strawboard  Co.,  190  111.  270. 

281;   Hovey   v.  Thompson,  37  111.  37 — Chisolm     v.     Beaman     Ma- 
chine Co.,  160  111.  113. 


602  THE  LAW  OF  ESTATES. 

and  under  certain  conditions,  upon  application  to  the  court,  vest 
in  such  court  a  discretion  and  a  power,  to  make  such  order  with 
restriction  such  as  the  court  may  see  fit  to  direct,  within  such 
exercise  of  legal  discretion.  And  in  a  case  where  an  order  to 
inspect  books  and  papers  was  granted,  the  court  in  its  order 
provided  for  the  sealing  up  of  parts  of  the  items  in  the  books, 
considered  by  the  court,  in  the  exercise  of  its  discretion  irrele- 
vant to  the  issue  in  the  cause  before  it;  and  this  exercise  of  dis- 
cretion was  sustained  by  the  Appellate  Court.^^  The  memory 
of  a  witness  may  be  refreshed  by  a  party  testifying  for  himself 
by  referring  to  copies  of  entries  in  his  books  of  account ;  but  he 
will  not  be  permitted  to  read  from  such  copies.^^  Where  books 
of  account  are  kept  by  a  party,  or  under  his  supervision,  en- 
tries made  therein  are  competent  as  admissions  of  the  matter 
stated.40 

670.    Surviving  partner — contract  with  deceased  agent.  The 

act  relating  to  evidence,  provides:  "In  any  action,  suit  or 
proceeding  by  or  against  any  surviving  partner  or  partners, 
joint  contractor  or  joint  contractors,  no  adverse  party  or  per- 
son adversely  interested  in  the  event  thereof,  shall,  by  virtue 
of  section  1  of  this  act,  be  rendered  a  competent  witness  to  tes- 
tify to  any  admission  or  conversation  by  any  deceased  partner 
or  joint  contractor,  unless  some  one  or  more  of  the  surviving 
partners  or  joint  contractors  were  also  present  at  the  time  of 
such  admission  or  conversation;  and  in  every  action,  suit  or 
proceeding  a  party  to  the  same  who  has  contracted  with  an 
agent  of  the  adverse  party — the  agent  having  since  died — shall 
not  be  a  competent  witness  as  to  any  admission  or  conversation 
between  himself  and  such  agent  unless  such  admission  or  con- 
versation with  the  said  deceased  agent  was  had  or  made  in  the 
presence  of  a  surviving  agent  or  agents  of  such  adverse  party, 
and  then  only  except  where  the  conditions  are  such  that  under 

38 — Pynchon  v.  Day,  18  111.  App.  40 — Borrower's     and     Investor's 

147.  Building  Association  v.  Cochrane 

39— Bonnett  v  Glattfeldt,  120  111.  103  111.  App.  34. 
166. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.        603 

the  provisions  of  section  2  and  3  of  this  act  he  would  have  been 
permitted  to  testify  if  the  deceased  person  had  been  a  princi- 
pal and  not  an  agent.  "^^  This  section  of  the  statute  is  con- 
strued and  applied  in  the  case  of  Rothstein  v.  Siegel,  Cooper 
&  Co.,'^^  where  it  is  held:  That  since  the  enactment  of  this 
section,  in  all  suits  or  proceedings,  a  party  who  has  contracted 
with  an  agent  of  the  adverse  party,  and  such  agent  having 
since  died,  is  not  a  competent  witness  to  any  admission  or  con- 
versation between  himself  and  such  agent,  unless  such  admis- 
sion or  conversation  with  the  said  deceased  agent,  was  had  or 
made  in  the  presence  of  a  surviving  agent  or  agents  of  such 
adverse  party.  It  is  also  held:  the  holder  of  a  policy  of  insur- 
ance, is  not  a  competent  witness,  as  to  any  conversation  with  a 
deceased  agent  of  the  company;  but  he  is  a  competent  witness 
to  testify  to  the  situation  of  the  contents  of  a  building  destroyed 
by  fire  at  the  time  the  insurance  was  effected  and  the  loss  sus- 
tained; it  was  error  to  exclude  testimony  for  such  purpose.  The 
section  of  the  statute  applies  to  actions  on  penal  bonds  as  well 
as  contracts.'*^  And  in  an  action  of  replevin,  to  recover  goods 
from  a  firm,  where  the  surviving  partner  of  another  firm  pre- 
viously owned  the  goods  sought  to  be  replevined,  was  a  member 
at  the  time  suit  was  brought  of  such  firm,  it  was  held,  the  plain- 
tiff was  not  competent  as  a  witness  to  state  admissions  by  the 
deceased  member  of  such  former  firm,  touching  an  alleged  sale 
to  the  plaintiff.44 

671.  Husband — wife.  ''No  husband  or  wife  shall,  by  virtue 
of  section  1  of  this  act,  be  rendered  competent  to  testify  for  or 
against  each  other  as  to  any  transaction  or  conversation  occur- 

41 — Section  4,  chapter  51,  "Evi-  cited    under    section    of    statute; 

dence  and  Depositions,"  as  amend-  Kurd's  R.  S.  of  III.,  1905,  p.  1035. 

ed   by   law   of   1S99,   p.   216.     Ap-  42—102  111.  App.  601;  Zeigler  v. 

proved    April    24,    1899;    in   force  Clinton  Mut.  Fire  Ins.  Co.,  84  II?.  ' 

July  1,  1889.    Starr  &  Curtis  Anno-  App.  444. 

tated    Statutes    of    Illinois,    with  43— Henry  v.  Tiffany,  5  111.  App. 

Jones  &  Addington's  Supplements  548. 

thereto,  Vol.  2,  p.  1836;  Vol.  4,  pp.  44— Foster  v.  Hart,  29  111.  App. 

608,  609;  Vol.  5,  p.  255,  and  cases  260. 


604  THE  LAW  OF  ESTATES. 

ring  during  the  marriage,  whether  called  as  a  witness  during 
the  existence  of  the  marriage,  or  after  its  dissolution,  except 
in  cases  where  the  wife  would,  if  unmarried,  be  plaintiff  or  de- 
fendant, or  where  the  cause  of  action  grows  out  of  a  personal 
Avrong  or  injury  done  by  one  to  the  other  or  grows  out  of  the 
neglect  of  the  husband  to  furnish  the  wife  with  a  suitable  sup- 
port; and  except  in  cases  where  the  litigation  shall  be  concern- 
ing the  separate  property  of  the  wife,  and  suits  for  divorce; 
and  except  also  in  actions  upon  policies  of  insurance  of  prop- 
erty, so  far  as  relates  to  the  amount  and  value  of  the  property 
alleged  to  be  injured  or  destroyed,  or  in  actions  against  carriers, 
so  far  as  relates  to  the  loss  of  property  and  the  amount  and 
value  thereof,  or  in  all  matters  of  business  transactions  where 
the  transaction  was  had  and  conducted  by  such  married  woman 
as  the  agent  of  her  husband,  in  all  of  which  cases  the  husband 
and  wife  may  testify  for  or  against  each  other,  in  the  same 
manner  as  other  parties  may,  under  the  provisions  of  this  act: 
Provided,  that  nothing  in  this  section  contained  shall  be  con- 
strued to  authorize  or  permit  any  such  husband  or  wife  to  tes- 
tify to  any  admission  or  conversation  of  the  other,  whether 
made  by  him  to  her  or  by  her  to  him,  or  by  either  to  third  per- 
sons, except  in  suits  or  causes  between  such  husband  and 
wife.  "45 

672.  Reference  and  application  in  general  of  said  section  5 
of  the  statute.  This  section  never  renders  witness  competent 
who  is  incompetent  under  sections  1  and  2  of  the  act  relating 
to  evidence.  But  a  witness  who  is  competent  to  testify  under 
said  sections  1  and  2  may  be  incompetent  under  section  5  of  the 
same  act.^^     The  parties  in  order  to  be  competent  must  bring 

45— Section  5,  chapter  51,  "Evi-  4,  p.  609;  Vol.  5,  p.  255,  and  cases 

dence  and  Depositions,"  as  amend-  cited    under    section    of    statute; 

ed  by  laws  of  1873-4,  p.  98,  sec.  1.  Hurd's  R.  S.  of  111.,  1905,  p.  1035. 

Approved    January    21,    1874.      In  46— Pyle  v.  Oustatt,  92  111.,  209, 

force  July  1,  1874.     Starr  &  Cur-  215-217;  Connolley  v.  Dunn,  73  111. 

tis  Annotated  Statutes  of  Illinois,  218;    Mitchinson  v.   Cross,   58    111. 

with  Jones  &  Addington's  Supple-  366;    Deniston  v.  Hoagland,  67  111. 

ments  thereto,  Vol.  2,  p.  1837;  Vol.  265. 


EVIDENCE   AND   DEPOSITIOKS.   UNDER   STATUTE.        605 

themselves  within  the  statute.*'^  When  husband  is  not  a  party 
to  the  suit,  although  interested  in  the  event  thereof,  the  wife 
is  a  competent  witness.^^  Where  neither  husband  nor  wife  are 
parties  to  a  suit,  the  wife  may  testify  to  conversations  occurring 
during  marriage.*^  The  general  rule  is  held  to  be,  that  a  wife 
can  be  a  witness  in  all  cases  in  which  her  husband  could  be  a 
witness.50  In  a  suit  by  a  wife  for  malicious  prosecu- 
tion, her  husband  is  a  competent  witness.^^  In  an  action  for 
slander,  the  husband  of  a  plaintiff,  is  a  competent  witness  on 
the  part  of  the  wife  for  slanderous  words  spoken  of  her.  But 
the  wife  of  a  defendant  is  not  a  competent  witness  for  him,  in 
an  action  for  slanderous  words  spoken  by  him  of  the  plaintiff.'^ ^ 
The  principle  invoked,  deducible  from  the  statutory  right  con- 
ferred, is  to  the  effect  that  the  "right  of  action"  is  property, 
and,  being  the  separate  property  of  the  husband  or  wife  as  the 
case  may  be,  it  is  the  exact  case  specified  in  the  statute,  when 
the  husband  and  wife  may  testify  for  and  against  each  other 
the  same  as  other  parties.^^  A  divorced  wife  may  testify  to 
facts  occurring  after,  but  not  before  divorce  in  an  action  for 
seduction.^*  In  a  bill  in  chancery  to  set  aside  a  sale  of  an  in- 
terest in  an  estate,  it  is  held:  Husband  and  wife  are  competent 
witnesses  for  and  against  each  other  only  in  the  cases  mentioned 
in  the  exceptions  to  section  5  of  the  act  relating  to  evidence. 
The  words,  "except  in  cases  where  the  wife  would,  if  unmar- 
ried, be  plaintiff  or  defendant,"  do  not  have  reference  to  cases 
where  the  wife  is  subsequently  divorced,  or  where  her  husband 
has  died,  but  simply  to  cases  where  the  proposed  witness  has 

47 — Flynn  v.  Gardner,  3  111.  App.        51 — Anderson  v.  Friend,  71   III. 

253.  175 

48 — Lincoln   Ave.    G.    R.    Co.    v.         52 — Hawver   v.   Hawver,   78    111. 

Dadans,  102  111.  417.  412;    Anderson   v.   Friend,   71    111. 

49 — Galbraith  v.  McLain,  84  111.  475;  Chicago,  Burlington  &  Quincy 

■^19.  R.  R.  V.  Dunn,  52  III.  260. 

50—111.  Cent.  R.  R.  Co.  v.  Tay-         53— Otis  v.  Spencer,  102  111.622; 

lor,  24  111.  323;  Freeman  v.  Free-  Munford  v.  Miller,  7  111.  App.  62. 
man,  62  III.  191.  54— Grose    v.    Rutledge,    81  111. 

266. 


606  THE  LAW  OF  ESTATES. 

never  been  married, — where  the  controversy  does  not  concern 
a  right  resulting  from  marriage.^^  So  in  a  suit  by  an  executor, 
the  widow  of  deceased  is  not  a  competent  witness  for  the  ex- 
ecutor, to  prove  facts  which  came  to  her  knowledge  in  conse- 
quence of  marriage  relation.^s 

673.  Concerning  separate  property  of  wife — husband  and 
wife  may  be  witness  for  and  against  each  other.  Where  an 
action  was  commenced  by  the  husband  against  a  transportation 
company,  upon  a  receipt  given  by  it  to  him  for  his  wife's  prop- 
erty; and,  the  suit  relates  to  the  wearing  apparel  and  orna- 
ments of  the  wife,  it  was  held:  The  wife  was  interested  in  the 
property  involved  in  the  suit,  which  rendered  her  a  competent 
witness,  under  the  exception  to  the  5th  section  of  the  act  relat- 
ing to  evidence,  which  declares,  that,  where  the  suit  relates  to 
the  separate  property  of  the  wife,  either  the  husband  or  wife 
may  be  a  witness.  ^^ 

674.  Husband  and  wife  agents  for  each  other.  The  wife's 
competency  to  testify  for  her  husband,  as  his  agent  in  a  trans- 
action is  limited  by  the  extent  of  her  agency;  if  competent  to 
testify  as  an  agent  to  the  whole  transaction,  she  will  be  per- 
mitted to  do  so.  If  her  agency  only  extends  to  a  part  of  a  trans- 
action,- she  is  a  competent  witness  only  as  to  that  part.^^    In  an 

55— Smith  v.  Long,  106  111.  485.  111.  App.  87;  Brewing  Co.  v.  Ohler- 

56— Reeves  v.  Herr,  59  111.  8L  king,  33  111.  App.  356;  Trealeaven 

57 — Northern  Line  Packet  Co.  v.  v.  Dixon,  119  111.  549;  Lingren  v. 

Shearer,  61  111.  263.     And  see  the  Ry.  Co.,  61  111.  App.  176;   Pain  v. 

following   cases,   which  apply  the  Farson,  179  111.  196;   Pfirshing  v. 

statute     and     sustain     the     text:  Heiter,  91  111.  App.  410;   Smith  v. 

Mitchell  V.  McDougal,  62  111.  498;  Smith,  168  IH.  490;   Clark  v.  Peo- 

Kebaum  v.  Cordell,  63  111.  23;  Big-  pie,  178  111.  42;  Gillespie  v.  Gilles- 

gins  V.  Brackman,  63  111.  316;  Mc-  pie,  159  111.  90;  Wilcoxon  v.  Read, 

Nail  V.  Ziegler,   68   111.  224;    Pigg  95  111.  App.  35;  Cassem  v.  Heustis, 

V.  Carroll,  89  111.  205;  Marshall  v.  201  111.  235. 

Peck,  91  111.  187;  Funk  v.  Eggles-        58 — Poppers    v.    Miller,    14    111. 

ton,   92   111.   515;    Mueller  v.   Reb-  App.  87;  Cent.  R.  R.  v.  Messnard, 

han,  94  111.  142;  Ledford  v.  Weber,  15    111.    App.    213;     Schneider    v. 

7  111.  App.  87;  Eads  v.  Thompson,  Kabsch,  91  111.  App.  387;    McDavid 

109   111.  87;   Poppers  v.  Miller,  14  v.  Rork,  92  111.  App.  485. 


EVIDENCE   AND   DEPOSITIONS,   UNDER   STATUTE.        607 

action  of  trespass  by  the  husband  against  a  stranger,  for  taking 
and  carrying  away  the  goods  of  the  husband,  it  was  held,  the 
wife  was  in  no  sense  the  agent  of  her  husband  in  the  transac- 
tion out  of  which  the  action  arose;  she  had  no  interest  in  the 
property  taken,  and  had  no  care  of  it  other  than  a  wife  may 
have  of  any  property  that  belonged  to  her  husband  when  the 
alleged  trespass  was  committed. ^^  The  evidence  must  clearly 
establish  the  agency  to  make  either  the  husband  or  wife  com- 
petent to  testify .^"^ 

675.  Adverse  party  compelled  to  testify.  Section  6  of  the 
Evidence  Act,  provides:  "Any  party  to  any  civil  action,  suit 
or  proceeding,  may  compel  any  adverse  party  or  person  for 
whose  benefit  such  action,  suit  or  proceeding  is  brought,  insti- 
tuted, prosecuted  or  defended,  to  testify  as  a  witness  at  the 
trial,  or  oy  deposition,  taken  as  other  depositions  are  by  law  re- 
quired, in  the  same  manner,  and  subject  to  the  same  rules,  as 
other  witnesses."^! 

676.  Incompetency  not  removed  by  release  or  assignment. 

Section  7  of  the  Evidence  Act,  provides:  "In  any  civil  action, 
suit  or  proceeding,  no  person  who  would,  if  a  party  thereto, 
be  competent  to  testify  therein  under  the  provisions  of  section 
2  or  section  3,  shall  become  competent  by  resson  of  any  assign- 

59 — Hayes   v.   Parmalee,   79   111.  cases  cited  under  section  of  stat- 

564.  ute;   Kurd's  R.  S.  of  111.,  1905,  p. 

60— Waggonseller  v.  Rexford,   2  1148.     (2)   Vol.  2,  pp.  2155,  2156; 

111.    App.    455;     Primmer   v.    Cla-  Vol.    4,    p.    684,    "general    notes"; 

baugh,  78  111.  94;  Trepp  v.  Baker,  also  p.   690;   Vol.   5,  p.  294,   "gen- 

78  111.  146;  Hawver  v.  Hawver,  78  eral  notes,"  also  p.  3121.     Starr  & 

111.  412;  Wing  v.  Goodman,  75  111.  Curtis,    etc.;     Kurd's    (1905),    pp. 

159;    Robertson    v.    Brost,    83    111.  1152,  1153. 

116.     See  section   15,   chapter   68,  61 — ^Section  6,  chapter  51,  "Evi- 

"Husband  &  "Wife."     Also  sections  dence   and   Depositions."    Starr  & 

1  and  2,  chapter  70,  entitled  "In-  Curtis   Annotated    Statute   of   Illi- 

juries."    Starr  &  Curtis  Annotated  nois,    Vol.    2,    p.    1841,    and    cases 

Statutes  of  Illinois,  with  Jones  &  cited;  Kurd's  R.  S.  of  111.,  1905,  p. 

Addington's    Supplements   thereto,  1036.     See  also  Thorn  v.  Wheeler, 

Vol.  2,  p.  2133;  Vol.  4,  p.  674,  and  25  111.  544;  Corderey  v.  Kughes,  6 

111.  App.  401. 


608  THE  LAW  OF  ESTATES. 

ment  or  release  of  his  claim,  made  for  the  purpose  of  allowing 
such  person  to  testify.  "^2  ^  person  having  an  undivided  inter- 
est in  fee  in  a  tract  of  land,  and  also  an  estate  of  homestead 
therein,  on  a  bill  filed  by  him  to  set  aside  an  adverse  title 
against  parties  defending  as  executors  and  devisees,  is  not  a 
competent  witness  to  testify  to  statements  and  declarations  of 
the  testator  in  his  lifetime,  for  the  purpose  of  impeaching  the 
title  acquired  by  him  to  the  land.  Nor  will  he  be  rendered  com- 
petent by  any  release  or  transfer  of  his  interest  made  for  that 
purpose.^3  Under  the  section  quoted  of  the  Evidence  Act,  a 
party  does  not  become  a  competent  witness  by  releasing  or  dis- 
claiming his  interest.6^ 

677.  Further  exceptions.  Section  8  of  the  Evidence  Act, 
provides:  ''Nothing  in  this  act  contained  shall  in  any  manner 
affect  the  laws  now  existing  relating  to  the  settlement  of  the 
estate  of  deceased  persons,  infants,  idiots,  lunatics,  distracted 
persons,  or  habitual  drunkards  having  conservators,  or  to  the 
acknowledgment  or  proof  of  deeds  and  other  conveyances  re- 
lating to  real  estate,  in  order  to  entitle  the  same  to  be  recorded, 
or  to  the  attestation  of  the  execution  of  last  wills  and  testaments, 
or  of  any  other  instrument  required  by  law  to  be  attested.®^ 

678.  Production  of  books  and  v^nritings.  Section  9  of  the 
Evidence  Act,  provides:    "The  several  courts  shall  have  power, 

62— Section  7,  chapter  51,  "Evi-  v.    Pegram,    151    111.   106;    Bardell 

dence  and   Depositions."     Starr  &  v.  Brady,  172  111.  420;  Albers  Com- 

Curtia  Annotated  Statutes  of  Illi-  mission  Co.  v.  Sessel,  193  111.  153. 

nois,     with  Jones    &    Addington's  In  the  latter  case  the  section  was 

Supplements    thereto,    Vol.    2,    p.  applied.     See  also  Christiansen  v. 

1841;  Vol.  4,  p.  610;  Vol.  5,  p.  256,  Dunham  Towing  &  Wrecking  Co., 

and  cases  cited  under  section   of  75  111.  App.  274. 
statute;  Kurd's  R.  S.  of  111.,  1905,        65— Section  8,  chapter  51,  "Evi- 

p.  1036.  dence  and  Depositions."     Starr  & 

63— Deyer   v.   Hoplcins,    112    111.  Curtis  Annotated  Statutes  of  llli- 

177.  nois.  Vol.  2,  p.  1842;   Kurd's  R.  S. 

64— Volbracht  v.  White,  197  111.  of  111.,  1905,  p.  1036.    See  also  sec- 

301;    Brace  v.   Black,   125    111.   33;  tions  60,  64,  chapter  3,  "Adminis- 

Pyle  V.  Pyle,  158  111.  289;   Taylor  tration"  (ante,  i6Z,  476).    See  also 

Byers  v.  Thompson,  66  111.  421. 


EVIDENCE  AND  DEPOSITIONS.   UNDER  STATUTE.        609 

in  any  action  pending  before  them,  upon  motion,  and  good  and 
sufficient  cause  shown,  and  reasonable  notice  thereof  given,  to 
require  the  parties,  or  either  of  them,  to  produce  books  or  writ- 
ings  in  their  possession  or  power  which  contain  evidence  perti- 
nent to  the  issue.  "*'6     If  an  order  for  the  production  of  books 
and  papers  is  entered  by  the  court    and    no    objection    made 
thereto,  at  the  time  of  the  entry  of  such  order,  it  will  be  con- 
sidered as  entered  by  consent  of  all  parties.^^     Reasonable  no- 
tice must  be  given,  and  the  affidavit  filed  in  support  of  such 
notice  to  produce  books  and  papers,  must  show  such  contain, 
evidence  material  to  the  issue  to  be  tried  in  the  case.^^     In 
such  a  proceeding  the  court  may  exercise  a  sound  legal  discre- 
tion, by  limiting  the  inspection  to  matters  contained  in  books 
to  that  only  which  is  pertinent  to  the  issue;  it  may  enter  an 
order  to  seal  up  and  cancel  all  parts  of  the  books  produced,  as 
do  not  relate  to  the  matters  in  controversy.    Such  an  order  was 
entered  by  the  trial  court  and  sustained  on  review,  as  coming 
within  the  exercise  of  the  legal  discretion  of  the  court.®®    "The 
several  courts  shall  have  power,"  as  used  in  section  9  of  the 
Evidence  Act,  is  held  to  mean  all  courts.'^'* 

679.  Printed  statutes.  Section  10  of  the  Evidence  Act, 
provides:  "The  printed  statute  books  of  the  United  States, 
and  of  this  State,  and  of  the  several  States,  of  the  Territories 
and  late  Territories  of  the  United  States,  purporting  to  be 
printed  under  the  authority  of  said  United  States,  any  State  or 
Territory,  shall  be  evidence  in  all  courts  and  places    in    this 

66 — Section  9,  chapter  51,  "Evi-  68 — First     National     Bank     v. 

dence  and  Depositions."     Starr  &  Mansfield,    48    III.    494;    Fuller   v. 

Curtis  Annotated  Statutes  of  Illi-  Field,  82  Fed.  Rep.  815;  Hoagland 

nois,    with    Jones    &    Addington's  v.    Great   Western   Telegraph    Co., 

Supplements    thereto,    Vol.    2,    p.  30  111.  App.  304;  Rigdon  v.  Cooley, 

1842;  Vol.  4,  p.  610;  Vol.  5,  p.  256,  31  111.  App.  630;  Bentley  v.  People, 

and   cases   cited   under  section   of  104  111.  App.  357. 

statute;  Kurd's  R.  S.  of  111.,  1905,  69— Pynchon  v.  Day,  118  111.  9. 

p.  1036.  70— Bentley   v.    People,    104    111. 

67 — Morgan    v.    Corlies,    81    111.  App.,  page  356. 
114. 

39 


610  THE  LAW  OF  ESTATES. 

State,  of  the  acts  therein  contained.""^  Courts  of  this  State  do 
not  take  judicial  notice  of  statutes  of  other  States. "^^  Such  must 
be  pleaded  to  be  effective;  but  such  statute  is  not  required  to 
be  pleaded  Jiaec  verba.  It  is  sufficient  to  state  the  substance  of 
so  much  of  the  statute  of  a  foreign  State  as  is  relied  on.'^s  The 
statutes  of  a  sister  State  cannot  be  proven  by  testimony  of  wit- 
nesses.^^ But  judicial  notice  will  be  taken  by  the  United  States 
courts  of  all  public  statutes  of  the  States.'^^  Effect  is  given 
to  section  10  of  the  Evidence  Act  as  above  quoted  in  the  case  of 
Grand  Pass  SJiooting  Cluh  v.  Croshy."'^  In  that  case  a  deed 
was  offered  in  evidence,  acknowledged  before  a  Notary  Public 
of  Indiana.  It  was  urged  that  the  certificate  was  not  in  com- 
pliance with  the  forms  of  acknowledgment  required  by  the  laws 
of  Illinois.  To  support  the  deed  the  plaintiff  offered  in  evi- 
dence a  copy  of  a  supplement  to  a  revision  of  the  Statutes  of 
Indiana,  which  appeared  to  be  published  by  authority  of  the 
General  Assembly  of  the  State  of  Indiana.  Held:  Sufficiently 
proven  under  section  10  aforesaid  of  the  Illinois  statute.  In 
the  case  of  Figge  v.  Rowlen,'^'^  an  affidavit,  sworn  to  before  a 
Notary  in  Ohio,  which  did  not  contain  a  certificate  "that  Notary 
was  authorized  under  laws  of  Ohio  to  administer  oaths"  held 
sufficiently  proven,  as  the  true  meaning  or  construction  of  the 
statute  of  a  foreign  State,  as  declared  by  the  courts  of  last  re- 
sort of  such  State,  may  be  proven  by  books  of  reports  of  deci- 

71 — Section  10,  chapter  51,  "Evi-  question  should  contain  to  be  ad- 
dence  and  Depositions."  Starr  &  missible  in  evidence,  see  La  Fay- 
Curtis  Annotated  Statutes  of  Illi-  ette  Bank  v.  Stone,  1  Scam.  (111.) 
aois,  with  Jones  &  Addington's  424;  Sick  v.  Woodruff,  15  111.  15; 
Supplements  thereto,  Vol.  2,  p.  Spangler  v.  Jacoby,  14  111.  297. 
1843;  Vol.  4,  p.  610,  and  cases  cited  74— McDeed  v.  McDeed,  67  111. 
under  section  of  statute;  Kurd's  545 
R.  S.  of  111.,  1905,  p.  1036.  75— Gormley  v.  Bunyan,  138  U. 

72— Pease  v.  Rhawn,  13  111.  App.  S.  623. 

637.  76—181   111.    269-270. 

73— L.  N.  A.  Ry.  Co.  v.  Shires.  77—185     111.   238.     Section     12, 

108  111.  628-629;  Eagan  v.  Connolly,  chapter  51,  "Evidence  and  Deposi- 

107   111.  458.     As  to  what  authen-  tions."     See  statute  citations  note 

ticated     copy     under     statute     in  83.    Post  681. 


EVIDENCE   AND   DEPOSITIONS,   UNDER   STATUTE.        611 

sions  of  such  coui-ts  purporting  to  be  published  by  authority; 
or  by  the  testimony  of  witnesses  learned  in  the  law  of  such 
StateJ^  Proof  of  a  foreign  law  should  be  made  to  the  court 
and  not  to  the  jury.^^ 

680.  Exemplified  statutes.  Section  11  of  the  Evidence  Act, 
provides:  **An  exemplification  by  the  Secretary  of  this  State, 
of  the  laws  of  the  other  States  and  Territories,  which  have  been 
or  shall  hereafter  be  transmitted,  by  order  of  the  executive  or 
legislatures  of  such  other  States  or  Territories,  to  the  Governor 
of  this  State,  and  by  him  deposited  in  the  office  of  said  Secre- 
tary', shall  be  admissible  in  evidence  in  any  court  of  this 
State,  "s^  The  certificate  of  the  Secretary  of  State  that  it  ap- 
pears, from  the  records  of  his  office,  that  the  Governor  on  a 
certain  day  appointed  A,  B,  and  C  trustees,  to  take  charge  of 
the  assets  of  the  State  Bank,  as  provided  by  law,  is  clearly  in- 
admissible to  prove  the  fact  of  such  appointment.  The  Secre- 
tary should  have  certified  to  a  transcript  of  the  record  showing 
the  appointment.^^  The  courts  of  this  State  will  not  take  judi- 
cial notice  of  the  statutes  of  other  States  changing  the  common 
law,  and,  in  the  absence  of  proof  to  the  contrary,  will  presume 
that  the  common  law  is  in  force  in  such  States.^- 

681.  Reports  of  courts.  Section  12  of  the  Evidence  Act, 
provides:  "The  books  of  reports  of  decisions  of  the  Supreme 
Court,  and  other  courts  of  the  United  States,  of  this  State,  and 
of  the  several  States  and  the  Territories  thereof,  purporting  to 
be  published  by  authority,  may  be  read  as  evidence  of  the  deci- 
sions of  such  courts.  "83 

78— Figg  V.  Rowlen,  185  111.  238.  81— Colder   v.   Bressler,   105   111. 

79 — Christiansen       v.        Graves  App.  419. 

Tank  Works,  223  111.  142.  82— Tinkler  v.  Cox,  68  111.  120. 

80 — Section  11,  chapter  51,  "Evi-  83 — Section  12,  chapter  51,  "Evi- 
dence and  Depositions."  Starr  &  dence  and  Depositions."  Starr  & 
Curtis  Annotated  Statutes  of  Illi-  Curtis  Annotated  Statutes  of  Illi- 
nois, Vol.  2,  p.  1844,  and  cases  nois,  with  Jones  &  Addington's 
cited;  Kurd's  R.  S.  of  III.  1905,  p.  Supplements  thereto,  Vol.  2,  p. 
1036.  1844;    Vol.    4,    p.    610,    and    cases 


612  THE  LAW  OF  ESTATES. 

682.  Court  records — how  certified.  Section  13  of  the  Evi- 
dence Act,  provides :  ' '  The  papers,  entries  and  records  of  courts 
may  be  proved  by  a  copy  thereof  certified  under  the  hand  of 
the  clerk  of  the  court  having  the  custody  thereof,  and  the  seal 
of  the  court,  or  by  the  judge  of  the  court  if  there  be  no  clerk.  "^^ 
The  court  takes  judicial  notice  of  its  own  records  without 
proof.^^  Judicial  record  is  admissible  to  prove  itself,  and  this, 
notwithstanding,  the  court  in  which  the  cause  is  pending  is  not 
entitled  to  the  custody,  or  whether  such  record  is  or  is  not  prop- 
erly brought  into  court.^*^  Court  records  may  be  proved  by  the 
production  of  the  original  records.^'^  The  certificate  of  official 
should  recite  facts  and  is  bound  to  record  a  fact,  not  conclusions. 
The  proper  proof  is  a  copy  of  the  record  duly  authenticated.^^ 
Foreign  judgments  as  well  as  domestic  ones,  may  be  authenti- 
cated as  provided  in  section  quoted.^ ^  Certified  copy  of  patent 
office  record,  admissible  to  establish  a  prima  facie  assignment 
of  patent^o 

683.  Records  of  cities — how  certified.  Section  14  of  the 
Evidence  Act,  provides:  "The  papers,  entries,  records  and 
ordinances,  or  parts  thereof,  of  any  city,  village,  town  or 
county,  may  be  proved  by  a  copy  thereof,  certified  under  the 
hand  of  the  clerk  or  the  keeper  thereof,  and  the  corporate  seal, 

cited;    Kurd's   R.   S.   of   111.,   1905,  87— Walker  v.  Doan,  108  111.  236. 

p.  1036.  88— Steidel    v.    People,    173    111. 

84 — Section      13,      chapter      51,  33;  Schaefer  v.  Wundene,  154  111. 

"Evidence  and  Depositions."  Starr  577;    City  of   Chicago  v.  English, 

&    Curtis    Annotated    Statutes    of  180  111.  476. 

Illinois,  with  Jones  &  Addington's  89 — People    v.    Miller,    195    111. 

Supplements    thereto.    Vol.    2,    p.  624;  Calhoun  v.  Ross,  60  111.  App. 

1844;    Vol.    4,    p.    610,    and    cases  312;    Horner   v.    Spellman,    78    111. 

cited;    Hurd's  R.   S.    of  111.,   1905,  206;    Thompson    v.    Mason,    4    111. 

p.  1036.  App.    452;    Welch  v.   Sykes,   8   III. 

85— Robinson  v.   Brown,   82   111.  (3  Gilm.)  197. 

279;   Evans  v.  People,  27  111.  App.  90 — Standard    Elevator     Co.     v. 

616.  Crane  Elevator  Co.,  76  Fed.  Rep. 

86— Stevison  v.  Earnest,   80  111.  793;  National  Cash  Register  Co,  v. 

517.  Navy   Cash  Register  Co.,   99  Fed. 

Rep.  89. 


EVIDENCE  AND  DEPOSITIONS,  UNDER  STATUTE.        613 

if  there  be  any;  if  not,  under  his  hand  and  private  seal. "^^ 
Copy  proves  what  original  would.^^  Certificate  must  be  ap- 
pended to  contents  of  record  and  not  be  merely  placed  to  con- 
clusions drawn  from  such  record  by  the  officer  making  the 
same.^3  Objection  to  certified  copy  of  record  cannot  first  be 
raised  on  appeal.^*  The  city  ordinance  of  a  sister  State  may 
be  proved  by  the  original  record  or  a  sworn  copy  of  it.^^  Where 
the  statute  provides  that  proof  of  the  publication  of  an  ordi- 
nance shall  not  be  required  until  denied  under  oath,  positive 
denial  is  necessary;  denial  by  information  and  belief  is  not 
sufficient.^^  And  where  the  law  requires  a  record  to  be  kept 
of  corporate  action  by  any  of  the  agencies  of  the  State,  the  rec- 
ord alone  can  be  resorted  to,  to  establish  such  action  in  all, col- 
lateral proceedings.^^ 

684.  Records  of  private  corporations — how  certified.  Sec- 
tion 15  of  the  Evidence  Act,  provides:  "The  papers,  entries 
and  records  of  any  corporation  or  incorporated  association,  may 
be  proved  by  a  copy  thereof,  certified  under  the  hand  of  the 
secretary,  clerk,  cashier  or  other  keeper  of  the  same.  If  the 
corporation  or  incorporated  association  has  a  seal,  the  same 
shall  be  affixed  to  such  certificate. '  '^^  The  records  of  a  building 
and  loan  association,  are  susceptible  of  proof  in  various  ways: 
from  the  by-laws,  from  the  action  of  the  board  of  directors, 
from  the  methods  of  exacting  payment  of  dues,  interest  and 
penalties;  its  methods  of  loaning  money,  etc.,  and  proof  can  be 
made  under  section  15  and  18  of  the  act  in  relation  to  evidence 

91 — Section      14,      chapter      51,  "City  and  Village  Act."  Kurd's  R. 

"Evidence  and  Depositions."  Starr  S.  of  1905;   see  also  Railroad  Co. 

&    Curtis    Annotated    Statutes    of  v.  Winters,  175  111.  293;   Railroad 

Illinois,  with  Jones  &  Addington's  Co.   v.    Eggermann,   161    111.    159; 

Supplements    thereto.    Vol.    2    p.  Billings   v.    City   of   Chicago,   167 

1845;  Vol.  4,  p  610;  Vol.  5,  p.  256,  111.   344;    Railroad   Co.    v.    Binder, 

and   cases  cited;    Kurd's  R.   S.   of  69  III.  App.  267. 
111.,  1905    p.  1036.  93— €ity  of  Chicago  v.  English, 

92— Schoot    V.    People,    89    111.  180  111.  476;  Steidel  v.  People,  173 

195;    see   section    20,    chapter   24,  111.  33;  Boyd  v.  Railroad  Co.,  103 

111.  App.  202. 


614  THE  LAW  OF  ESTATES. 

and  depositions,^^  A  pamphlet  purporting  to  be  a  copy  of  the 
by-laws  of  the  order  of  "Foresters"  is  inadmissible  unless 
proved  as  provided  by  section  15  or  18  of  Chapter  51  entitled 
"Evidence  and  Depositions. "^ 

685.  Form  of  certificate.  Section  16  of  the  Evidence  Act, 
provides:  "The  certificate  of  any  such  clerk  of  a  court,  city, 
village,  town,  county,  or  secretary,  clerk,  cashier,  or  other  keeper 
of  any  such  papers,  entries,  records  or  ordinances,  shall  contain 
a  statement  that  such  person  is  the  keeper  of  the  same  and  if 
there  is  no  seal,  shall  so  state.-  As  affecting  a  foreign  record 
of  a  judgment,  the  certificate  failed  to  state,  that  such  person 
certifying  such  record  was  the  keeper  of  the  same;  and  this 
omission  rendered  papers  inadmissible.^  Where  the  corporation 
was  named  by  initials  in  the  certificate,  oral  testimony  was  ad- 
mitted to  establish  the  meaning  of  such,  it  was  held:  Objection 
thereto  on  that  ground  was  not  valid.^  But  objection  if  any, 
to  a  certificate  must  be  specific,  if  not  so,  it  is  not  well  taken 
and  the  court  in  reviewing  the  record  will  not  consider  any  ob- 
jection not  specific."^ 


94 — Deuterman    v.    Ruppel,    200  der  of  Forrester's  v.  Heath,  80  III. 

111.  201.  App.     239;   Lloyd     v.  Knights     of 

95— L.   N.  A.  Ry.  Co.  v.  Shires,  Pythias,  98  Fed.  Rep.  69. 

108  111.  617.  2— Section       16,       chapter      51, 

96 — Lynch  v.  City  of  Litchfield,  "Evidence  and  Depositions."  Starr 

16  111.  App.  612.  &    Curtis    Annotated    Statiites    of 

97 — People  v.  Madison  Co.    125  Illinois,  with  Jones  &  Addington's 

111.  334.  Supplements    thereto.    Vol.    2,    p. 

98 — Section      15,      chapter      51,  1846;    Vol.    4,    p.    611,    and    cases 

"Evidence  and  Depositions."  Starr  cited;    Kurd's  R.   S.   of   111.,   1905, 

&    Curtis    Annotated    Statutes    of  p.  1037. 

Illinois,  with  Jones  &  Addington's  3 — Thompson    v.    Mason,    4    111. 

Supplements    thereto.    Vol.    2,    p.  App.  452;    Campbell  v.   Miller,   84 

1846;    Vol.    4,    p.    611,    and    cases  111.  App.  214. 

cited;    Kurd's   R.   S.   of   111.,  1905,  4— Phillips    v.    Webster,    85    111. 

p.  1036.  146. 

99— Post      687;       Cantwell       v.  5 — Ewart  v.  Village  of  Western 

Welch  Receiver,  187  111.  275.  Springs,  180  111.  332;   Cantwell  v. 

1— Statute  cited  note   (98);   Or-  Welch,  187  111.  279. 


EVIDENCE   AND   DEPOSITIONS,   UNDER   STATUTE.        616 

686.  Records  of  justices  of  the  peace — certified  copies.  Sec- 
tion 17  of  the  Evidence  Act,  provides:  "The  proceedings  and 
judgments  before  justices  of  the  peace  may  be  proved  by  a  cer- 
tified copy  thereof,  under  the  hand  and  private  seal  of  the  jus- 
tice before  whom  such  proceeding  or  judgment  is  had,  or  his 
successor,  having  the  custody  of  the  same.  When  such  certified 
copy  is  to  be  used  as  evidence  in  any  county  other  than  that  in 
which  the  justice  so  certifying  resides,  the  certificate  of  the 
county  clerk  shall  be  annexed,  certifying  that  the  justice  before 
whom  the  proceeding  or  judgment  was  had  was,  at  the  time  such 
proceeding  or  judgment  was  had,  a  justice  of  the  peace,  duly 
commissioned,  and  if  the  certificate  is  by  a  successor,  that  he 
was  such  successor  at  the  time  of  making  such  certificate."* 
Where  a  certified  copy  of  a  judgment  of  a  justice  of  the  peace 
of  another  State  was  offered  in  evidence,  it  was  held  the  party 
entitled  to  introduce  such  evidence,  must  prove  that  such  jus- 
tice had  jurisdiction  of  the  subject-matter  of  the  suit.'^  The 
judgment  may  be  proved  by  original  docket  of  justice  within 
the  county  and  State  without  resort  to  certified  copy  of  the 
record  of  his  docket.^  A  record  to  which  was  attached  the  cer- 
tificate of  the  justice  of  the  peace,  but  certificate  of  the  county 
clerk  as  required  by  statute  entirely  omitted,  held  inadmissible 
in  evidence.^ 

687.  Sworn  copies — false  certificate — penalty.  Section  18 
of  the  Evidence  Act,  provides:  **Any  such  papers,  entries, 
records  and  ordinances  may  be  proved  by  copies  examined  and 
sworn  to  by  credible  witnesses."  Section  19.  **If  any  such 
officer,  clerk,  secretary,  cashier,  justice  of  the  peace,  or  other 
person  authorised  to  certify  copies  of  any  papers,  entries,  rec- 


6 — Section      17,       chapter       51,  7 — Trader    v.    McKee,    1    Scam. 

"Evidence  and  Depositions."  Starr  (III.)  558. 

&    Curtis   Annotated    Statutes    of  8 — Willoughby     v.     Dewey,     54 

Illinois,  Vol.  2,  p.  1846,  and  cases  111.  266. 

cited;    Kurd's  R.   S.  of  111.,  1905,  9— Crossett   v.    Owens,    110    UL 

p.  1037.  378. 


616 


THE  LAW  OF  ESTATES. 


©rds  or  ordinances,  shall  knowingly  make  a  false  certificate,  he 
shall  be  punishable  in  the  same  manner  as  if  he  were  guilty  of 
perjury.  "10 


10 — Sections  18  and  19,  chapter 
51,  "Evidence  and  Depositions." 
Starr  &  Curtis  Annotated  Statutes 
of  Illinois,  with  Jones  &  Adding- 
ton's  Supplements  thereto.  Vol.  2, 
p.  1847;  Vol.  4,  p.  611;  Kurd's  R. 
S.  of  111.,  1905,  p.  1037. 

If  a  person  in  official  station  is 
bound  to  record  a  fact,  the  proper 
proof  is  a  copy  of  the  record  duly 
authenticated;  but  as  to  matters 


of  fact  such  is  not  in  duty  bound 
to  record,  his  certificate,  being 
extra-official,  is  merely  the  state- 
ment of  a  private  person,  and  will 
therefore  be  rejected.  Schaefer  v. 
Wunderle,  154  111.  577.  The  evi- 
dence provided  for  in  Section  18, 
is  original,  and  when  such  exists 
of  record,  secondary  evidence  can 
not  be  resorted  to.  Mandel  v. 
Swan,  etc.,  Co.,  154  111.  177. 


CHAPTER  XXXVIII 


APPRENTICES 


Sec, 

688.  Introductory  remarks. 

689.  Who  may  bind. 

690.  Finding   of   drunkenness   and 

disability  of  parentsi, 
whose  consent  is  required. 
Indorsement  of  indenture. 

691.  Power     of     executors     under 

will. 

692.  Beggars,      pauper      children, 

arrest  of  such — Binding 
same. 

693.  Indentures,   age   and   time   of 

service.  What  indenture 
shall   provide. 

694.  Rights  of  the  parties. 


Sec. 

695.  Compensation  to  be  specified 

and  secured  to  minor. 

696.  When   indenture   to   be   filed, 

void  indenture.    Duty  of  of- 
ficers. 

697.  Complaints    against    master. 

698.  Removing    apprentice    out    of 

the   State. 

699.  Removal  of  master.  When  ap- 

prentice discharged. 

700.  Death  of  master. 

701.  Enticing     away      apprentice, 

penalty. 

702.  Action    measure    of   damages, 

for  enticing  away. 


Sec.  688.  Introductory  remarks.  Apprentices  are  termed 
in  law,  a  class  of  infant  servants,  who  are  legally  bound  to 
service  for  a  term  of  years  to  learn  some  art  or  trade.  The 
term  is  applied  to  infant  males  under  twenty-one  years  of  age; 
and  to  unmarried  females  under  eighteen  years  of  age.*  Ap- 
prentices are  generally  bound  by  a  statutory  form  of  indenture ; 
under  which,  the  apprentice  by  his  or  her  own  free  will,  or  by 
their  own  act  (if  not  paupers),  and  with  the  consent  of  their 
father,  or  mother,  or  guardian  or  testamentary  executor;  and 
in  some  instances  such  are  bound  under  authority  vesting  by 
legislative  enactment  in  a  justice  of  the  peace,  a  judge  of  a 
court  of  record  or  other  specially  authorized  public  official  of 
the  different  States.  In  order  to  bind  the  apprentice  it  is  neces- 
sary that  the  statutory  requirements  be  substantially  if  not 
strictly  followed.-     "Children  under  the  age  of  sixteen  years 

1—2  Kents  Com.  section  263.  2— Page  v.  Marsh,  36  N.  H.  305. 

617 


618  THE  LAW  OF  ESTATES. 

may  be  bound  as  apprentices,  clerks  or  servants,  until  they  ar- 
rive at  that  age,  with  or  without  their  consent.  "^  And  this  has 
been  the  law  of  this  State  since  the  revision  of  1874.  Under 
the  statute  of  1845,  the  infant  could  be  bound  without  their 
consent  under  fourteen  years;  at  which  age,  they  might  be 
bound  with  their  consent,  if  males,  till  the  age  of  twenty-one 
years,  and  females  till  the  age  of  eighteen  years.^  The  several 
States  of  the  Union  by  statutory  enactment,  have  in  a  great 
measure,  protected  the  infant  from  abuse  and  imposition  by 
those  having  their  care  and  custody.  Wilful  and  unnecessary 
exposure  to  the  inclemency  of  the  weather,  employment  of  such 
in  any  manner  injurious  to  health  or  morals;  or  the  employ- 
ment of  such  in  any  manner  dangerous  to  the  limbs  or  the 
physical  body  is  strictly  forbidden  under  the  criminal  code  of 
Illinois.^ 

689.  Who  may  bind.  The  statute  of  Illinois  relating  to 
"Apprentices"  provides:  "A  minor  may  be  bound  as  afore- 
said by  the  father  with  the  consent  of  the  mother,  or  in  case 
of  the  death,  habitual  drunkenness,  prostitution,  imprisonment 
in  the  penitentiary  or  incapacity  of  the  mother,  or  wilful  de- 
sertion of  the  family  for  six  months,  without  her  consent;  or, 
in  case  of  the  death,  habitual  drunkenness,  imprisonment  in  the 
penitentiary  or  incapacity  of  the  father,  or  his  desertion  of 
the  family  for  the  space  of  six  months,  by  the  mother;  or,  in 
case  neither  father  nor  mother  is  living  and  free  from  said 
objections,  by  the  gl^ardian;  or  if  the  minor  has  no  parent  or 
guardian,  by  the  judge  of  the  County  or  Circuit  Court  of  the 
county  in  which  the  minor  resides.     An  illegitimate  may  be 

3 — Section    1,    chapter    9,   "Ap-        5 — Starr     &     Curtis     Annotated 

prentices."      Starr    &    Curtis    An-  Statutes     of     Illinois,     par.     492, 

notated    Statutes   of   Illinois,   Vol.  section     42a,     approved     and     in 

1,  p.  423,  Kurd's  R.  S.  of  111.,  1905,  force    July    1,    1895,    chapter    38, 

p.  160.  Criminal  Code  of  Illinois,  Forbid- 

4 — Same     statute     citation     as  ding  certain  employment  of  chil- 

note  3.  dren;    Kurd's  R.   S.   of  111.,   1905. 

p.  754. 


APPRENTICES.  619 

bound  by  his  or  her  mother,  during  the  lifetime  of  the  putative 
father,  as  well  as  after  his  decease."^ 

690.  Finding  of  drunkenness  and  disability  of  parents, 
whose  consent  is  required — indorsement  on  indenture.  Section 
3  of  the  same  act,  provides :  ' '  The  fact  of  such  habitual  drunk- 
enness, prostitution,  imprisonment,  incapacity  or  desertion,  may 
be  tried  and  found  by  a  jury  to  be  impaneled  for  that  purpose 
by  the  County  or  Circuit  Court  of  the  county  in  which  the 
minor  resides,  upon  such  reasonable  notice  to  the  parties  inter- 
ested, by  personal  service  or  advertisement,  as  the  court  shall 
direct. '  *  Section  4.  ' '  The  finding  of  the  jury  shall  be  indorsed 
upon  the  indenture  by  the  judge,  attested  by  the  clerk,  under 
the  seal  of  the  court,  and  shall  be  deemed  sufficient  evidence  of 
the  facts  found.  "^ 

691.  Power  of  executors  under  will.  Section  5  of  the  same 
act,  provides:  "The  executor  or  executors  who  are,  or  shall 
be,  by  the  last  will  and  testament  of  a  father,  directed  to  bring 
up  his  child  to  some  trade  or  calling,  shall  have  power  to  bind 
such  child  by  indenture,  in  like  manner  as  the  father,  if  living, 
might  have  done;  or  shall  raise  such  child  according  to  such 
directions:  Provided,  this  section  shall  not  be  so  construed  as 
to  deprive  the  mother  of  the  custody  and  tuition  of  her  child, 
without  her  consent,  if  she  be  a  fit  and  competent  person  to 
have  such  custody  and  tuition.^ 

692.  Beggars — pauper  children — arrest  of  such — binding 
same.  Section  6.  "Any  child  under  the  age  of  sixteen,  who 
habitually  begs  for  alms,  or  who  is,  or  either  of  whose  parents 
is  chargeable  to  the  county  or  town  as  having  a  lawful  settle- 

6 — Section     2,     chapter    9,  "Ap-  Annotated     Statutes     of     Illinois, 

prentices."     Starr  &  Curtis  Anno-  Vol.  1,  pp.  423,  424;   Kurd's  R.  S. 

tated   Statutes  of   Illinois,  Vol.   1,  of  111.,  1905,  p.  160. 

p.  423;   Kurd's  R.  S.  of  111.,  1905,  8— Section    5,    chapter    9,    "Ap- 

p.  160.  prentices."     Starr  &  Curtis  Anno- 

7 — Sections  3  and  4,  chapter  9,  tated  Statutes  of  Illinois,  Vol.  1, 

"Apprentices."      Starr    &    Curtis  p.  424.     Kurd's  R.  S.  of  111.,  1905, 

p.  160. 


620  THE  LAW  OF  ESTATES. 

ment  therein,  whereby  the  child  has  also  to  be  supported,  or 
who  is  supported  there,  in  whole  or  in  part,  at  the  charge  of  the 
county  or  town,  may  be  bound  as  an  apprentice,  clerk  or  servant 
until  he  or  she  arrives  at  that  age,  by  the  county  board  or  the 
overseers  of  the  poor,  as  the  case  may  be,  with  the  approval  of 
the  judge  of  the  County  or  Circuit  Court. "^  Section  7.  "The 
court  may  on  application  of  the  county  board  or  overseer  of  the 
poor,  issue  a  writ  requiring  the  sheriff,  coroner  or  any  constable 
of  the  county,  to  bring  such  minor  before  it,  for  the  purpose  of 
being  so  bound.  "^^ 

693.  Indentures — age  and  time  of  service — ^what  indentures 
shall  provide.  Section  8.  "No  minor  shall  be  bound,  unless 
by  an  indenture  of  two  parts,  sealed  and  delivered  by  both  par- 
ties, and  when  the  consent  of  any  person  or  court  is  required, 
the  same  shall  be  signified,  in  writing,  in  or  upon  the  indenture, 
and  signed  by  the  person  or  judge  whose  consent  is  required." 
Section  9.  "The  age  and  time  of  service  of  every  apprentice 
or  servant  shall  be  inserted  in  such  indentures;  but  if  the  age 
is  unknown,  then  it  shall  be  inserted  according  to  the  best  in- 
formation, which  age  shall,  in  relation  to  the  term  of  service, 
be  taken  as  the  true  age  of  such  minor. "^^  "In  all  indentures 
it  shall  be  provided  that  the  master  shall  cause  such  clerk,  ap- 
prentice or  servant  to  be  taught  to  read  and  write,  and  the 
ground  (general)  rules  of  arithmetic;  and  also  that  at  the  ex- 
piration of  such  term  of  service,  the  master  shall  give  to  such 
apprentice  a  new  Bible  and  two  complete  suits  of  new  wearing 
apparel  suitable  to  his  or  her  condition  in  life,  and  twenty 
($20.00)  dollars  in  money,  in  all  cases  where  the  term  of  service 

9 — Section    6,    chapter    9,    "Ap-  prentices."     Starr  &  Curtis  Anno- 

prentices."     Under  this  section  of  tated   Statutes  of   Illinois,   Vol.  1, 

the   statute,   it  is  held   that  it  is  p.   424;    Kurd's  R.   S.  of   1905,  p. 

not  necessary  in  terms  to  describe,  160. 

in  the  indenture,  the  person  so  11 — Sections  8,  9  and  10,  chap- 
bound  out  "is  a  poor  child."  Hayes  ter  9,  "Apprentices."  As  amended 
V.    Borders,    1    Gilm.    (111.)    46.  by  law  of  1903,  May  15,  1903,  page 

10 — Section   7,   chapter   9,   "Ap-  of  statute  same  as  No.  10. 


APPRENTICES.  621 

has  been  one  year  or  more.  In  all  miu  icipalities  where  a  man- 
ual training  school  is  maintained  for  the  technical  instruction 
of  apprentices,  such  indentures  shall  further  provide  that  it 
shall  be  the  duty  of  the  master  to  cause  the  apprentice  to  at- 
tend such  school  for  at  least  three  consecutive  months  in  each 
year,  without  expense  to  the  apprentice.  "^^ 

694.  Rights  of  the  parties.  An  indenture  of  apprenticeship, 
which  is  not  in  conformity  with  the  statute  on  that  subject,  is 
void  as  to  the  minor,  but  remains  binding  upon  the  father  of  the 
minor  who  joined  with  him  in  its  execution,  and  stipulated  that 
its  conditions  should  be  performed.^  ^  A  father  who  is  entitled 
to  the  services  of  his  minor  son,  and  for  whom  he  is  obliged  to 
provide,  may,  at  the  common  law,  assign  those  services  to  an- 
other by  contract,  for  a  consideration  to  enure  to  himself.^* 
So  where  an  indenture  of  apprenticeship  was  entered  into  by  a 
minor,  his  father  joining  therein,  stipulating  that  the  minor  was 
to  perform  certain  services  for  a  specified  compensation,  the 
father  also  covenanting  separately  that  his  son  should  do  and 
perform  what  he  had  agreed  to  do  on  his  part,  it  was  held,  that, 
payment  being  made  for  the  services  of  the  minor  according  to 
the  terms  of  the  agreement,  a  recovery  could  not  be  again  had 

12 — Amendment  includes  mat-  of  it,  expressly  describe  and  de- 
ter after  *  in  section  10.  Starr  &  note  who  are  the  parties  to  it,  (as 
Curtis  Annotated  Statutes  of  Illi-  between  A.  of  the  first  part,  and 
nois.  Vol.  5,  p.  32;  Vol.  1,  pp.  424,  B.  of  the  second  part)  C.  can- 
425,  as  to  sections  8  and  9;  Kurd's  not  sue  thereon,  although  the  ob- 
R.  S.  of  111.,  1905,  pp.  160,  161.  The  ligation  purport  to  be  made  for 
fact  that  a  person  is  an  inden-  his  sole  advantage,  and  contain 
tured  servant  cannot  be  proved  by  an  express  covenant  with  him  to 
parol,  the  indenture  itself  must  be  perform  an  act  for  his  benefit, 
used  as  the  higher  and  better  Hager  v.  Phillips,  14  111.  259. 
evidence.  Chambers  v.  People,  4  13 — Day  v  Everett,  7  Mass.  154; 
Scam.  (111.)  p.  351.  In  the  fol-  Butler  v.  Hubbard,  5  Pick,  250; 
lowing  case  an  action  of  covenant  United  States  v.  Bainbridge,  1 
was  brought,  the  declaration  being  Mason,  71-78;  Branch  v.  Ewing- 
on  an  indenture  of  apprenticeship,  ton,  2  Doug.  518;  Cuming  v.  Hill, 
for  breach  of  covenants  therein.  3  Barn  &  Aid,  59;  Ford  v.  Mc- 
Held  in  that  case.  If  a  deed  be  Vay,  55  111.  119. 
inter  parties,  that  is,  on  the  face        14 — Ford  v.  McVay,  55  111.  119. 


622  THE  LAW  OP  ESTATES. 

for  such  services  in  the  name  of  the  minor,  on  the  ground  the  in- 
denture was  void  under  the  statute;  because,  as  to  the  minor 
and  his  services  it  was  binding  on  the  father,  who  was  entitled  to 
such  services.  An  implied  contract  cannot  arise  where  there  is  a 
subsisting  express  contract  covering  the  entire  subject  matter.^^ 

695.  Compensation  to  be  specified  and  secured  to  minor. 
Section  11  of  the  Apprentice  Act,  provides:  "Every  sum  of 
money  paid  or  agreed  for,  with  or  in  relation  to  the  binding  of 
any  clerk,  apprentice  or  servant,  as  a  compensation  for  his  serv- 
ices, shall  be  inserted  in  the  indentures,  and  all  money  or  prop- 
erty so  paid  or  agreed  to  be  paid,  shall  be  secured  to  and  for  the 
sole  use  and  benefit  of  the  minor,  "i^  A  right  to  sue  upon  a  writ- 
ten contract  of  apprenticeship,  properly  alleged  and  supported 
by  proof  is  fully  recognized  by  the  Illinois  courts. ^'^ 

696.  When  indenture  to  be  filed — void  indentures^ — duty  of 
ofiicers.  Section  12  of  the  Apprentice  Act  provides:  "When- 
ever any  minor  shall  be  bound  by  other  than  his  parent  or  guard- 
ian, one  copy  of  the  indentures  shall  be  filed  in  the  office  of  the 
clerk  of  the  County  Court,  for  safe  keeping. "^^  Section  13.  "All 
indentures,  covenants,  promises  and  bargains,  for  taking,  bind- 
ing or  keeping  any  apprentice,  clerk  or  servant,  not  in  conform- 
ity with  the  provisions  and  requirements  of  this  act,  shall  be 
utterly  void  in  law,  as  against  such  clerk,  apprentice  or  serv- 
ant. "^^  Section  14.  "It  shall  be  the  duty  of  the  officers  or  persons 
binding  such  minors,  and  of  the  judge  of  the  County  or  Circuit 
Court,  to  see  that  the  terms  of  the  indenture  are  complied  with, 
and  that  such  minor  is  not  ill  used."2o 

15 — Ford    V.    McVay,    55    111.    p.  17 — Chicago     Stove     Works      v. 

122,  and  authorities  cited  in  opin-  Lalley,  41   111.  App.   249;    Ford  v. 

ion;     Shute  v.  Dorr,  5  Wend.  203;  McVay,    55    111.    122;     Walker    v. 

Jennings  v.  Graves,  2  Blackf.  449;  Brown,   28   111.   378. 

Chase  v.  Smith,  5  Vt.  556;  Walker  18— Section  12,  chapter  9,  "Ap- 

V.  Brown,  28  111.  378.  prentices." 

16 — Section  11,  Chapter  9,  "Ap-  19 — Section  13,  Chapter  9,  "Ap- 
prentices."    Starr  &  Curtis  Anno-  prentices." 

tated   Statutes  of   Illinois,   Vol.   1,  20 — Section  14,  chapter  9,  "Ap- 

p.  425;  Kurd's  R.  S.  of  111.,  1905.  prentices."  As  to  statute  citations, 
p.  161. 


APPRENTICES.  623 

697.  Complaints  against  master.  Section  15.  "The  judge 
of  the  Circuit  or  County  Court  shall  at  all  times  receive  the  com- 
plaints of  any  person  against  masters,  alleging  undeserved  or 
immoderate  correction,  unwholesome  food,  insufficient  allowance 
of  food,  raiment  or  lodging,  want  of  sufficient  care  or  physic 
in  sickness,  want  of  instruction  in  their  trade  or  profession,  or 
the  violation  of  any  of  the  agreements  or  covenants  in  the  in- 
denture of  apprenticeship  contained  or  that  the  apprentice, 
clerk  or  servant  is  in  danger  of  being  removed  out  of  the  juris- 
diction of  this  state;  and  shall  cause  such  masters  to  be  sum- 
moned before  them,  and  shall,  on  the  return  of  the  summons, 
whether  such  master  appear  or  not,  hear  and  determine  such 
cases  in  a  summary  way,  and  make  such  order  thereon  as  in  the 
judgment  of  the  said  judge  will  relieve  the  party  injured  in  fu- 
ture ;  and  shall  have  authority,  if  said  judge  think  proper,  to  dis- 
charge such  clerk,  apprentice  or  servant  from  his  apprentice- 
ship or  service ;  and  in  case  any  money  or  other  thing  shall  have 
been  paid,  given  or  contracted  or  agreed  for  by  either  party,  in 
relation  to  the  said  apprenticeship  or  service,  shall  make  such 
order  concerning  the  same  as  the  said  judge  shall  deem  just  and 
reasonable.  And  if  the  apprentice  so  discharged  shall  have  been 
bound  originally  as  provided  in  the  sixth  section  of  this  act,  it 
shall  be  the  duty  of  the  judge  granting  the  discharge,  again  to 
bind  him,  if  said  judge  shall  think  proper.  "21 

698.  Removing  apprentice  out  of  State.  Section  16.  "It 
shall  not  be  lawful  for  any  master  to  remove  any  clerk,  appren- 
tice or  servant  bound  to  him  as  aforesaid,  out  of  this  State,  with- 
out the  consent  of  the  county  court ;  and  if,  at  any  time,  it  shall 
appear  to  any  judge  or  justice  of  the  peace,  upon  the  oath  of 
any  competent  person,  that  any  master  is  about  to  remove  or 


notes  18,  19,  20,  see  Starr  &  Cur-  21— Section  15,  chapter  9,  "Ap- 
tis  Annotated  Statutes  of  Illinois,  prentices."  Starr  &  Curtis  An- 
Vol.  1,  p.  425;  Kurd's  R.  S.  of  111.,  notated  Statutes  of  Illinois,  Vol. 
1905,  p.  161.  1,  p.  425;  Kurd's  R.  S.  of  111.  1905, 

p.  161. 


624  THE  LAW  OF  ESTATES. 

cause  to  be  removed  any  such  clerk,  apprentice  or  servant  out  of 
this  State,  it  shall  be  lawful  for  such  judge  or  justice  to  issue 
his  warrant,  and  to  cause  such  master  to  be  brought  before  him, 
and  if,  upon  examination,  it  appear  that  such  apprentice,  clerk 
or  servant  is  in  danger  of  being  removed  without  the  jurisdiction 
of  this  State,  the  judge  or  justice  may  require  the  master  to  en- 
ter into  recognizance,  with  sufficient  security,  in  the  sum  of 
$1,000,  conditioned  that  such  apprentice  clerk  or  servant  shall 
not  be  removed  without  the  jurisdiction  of  this  State,  and  that 
the  said  master  will  appear  with  the  apprentice,  clerk  or  servant 
before  the  Circuit  Court,  at  the  next  term  thereof  and  abide  the 
decision  of  the  court  therein;  which  recognizance  shall  be  re- 
turned to  the  Circuit  Court,  and  the  said  court  shall  proceed 
therein  in  a  summary  manner,  and  may  discharge  or  continue 
the  recognizance,  or  may  require  a  new  recognizance,  and  other- 
wise proceed  according  to  law  and  justice.  But  if  the  master, 
when  brought  before  any  judge  or  justice,  according  to  the  pro- 
visions of  this  section,  will  not  enter  into  a  recognizance  as  afore- 
said, if  required  so  to  do,  it  shall  be  lawful  for  such  court  or 
justice  to  discharge  such  clerk,  apprentice  or  servant  from  such 
apprenticeship  or  service,  and  to  award  judgment  against  such 
master  for  costs,  and  for  such  sum  as,  considering  the  terms  of 
the  indenture  and  the  condition  of  the  parties,  may  be  deemed 
just  and  reasonable.  "22 

699.  Removal  of  master — when  apprentice  discharged.  Sec- 
tion 17.  Whenever  any  master  of  any  clerk,  apprentice  or  serv- 
ant, bound  by  the  court  as  aforesaid,  shall  wish  to  remove  out  of 
this  State,  or  to  quit  his  trade  or  business,  it  shall  be  lawful  for 
him  to  appear  with  his  clerk,  apprentice  or  servant  before  the 
Circuit  or  County  Court  of  the  proper  county;  and  such  court 
shall  have  power,  if  deemed  expedient,  to  discharge  such  clerk, 
apprentice  or  servant  from  the  service  of  such  master.^^ 

22— Section   16,  chapter  9,  "Ap-     1,  p.  426;  Kurd's  R.  S.  of  111.,  1905, 
prentices."      Starr    &    Curtis    An-     p.  161. 
notated   Statutes    of   Illinois,   Vol.         23 — Section   17,   chapter  9,   "Ap- 


APPRENTICES.  625 

700.  Death  of  master.  Section  18.  "When  any  person 
shall  become  bound  as  clerk,  apprentice  or  servant,  according  to 
the  provisions  of  this  act,  to  two  or  more  persons,  and  one  or 
more  of  them  die  before  the  expiration  of  the  term  of  service,  the 
indentures  and  contracts  shall  survive  to  and  against  such  sur- 
vivors; and  in  case  of  the  death  of  all  of  the  masters  in  any 
such  indenture  or  contract  named,  before  the  expiration  of  the 
term  of  service,  such  clerk,  apprentice  or  servant  shall  be  there- 
by discharged  from  such  service.  "^^ 

701.  Enticing  away  apprentice — penalty.  Section  19. 
"Every  person  who  shall  counsel,  persuade  or  entice  any  clerk, 
apprentice  or  servant  to  run  away,  or  to  absent  himself  from  the 
service  of  his  master,  or  to  rebel  against  or  assault  his  master, 
shall  forfeit  and  pay  a  sum  not  less  than  $20  nor  more  than  $500, 
to  be  sued  for  and  recovered  by  action  on  the  case,  with  costs, 
by  such  master,  in  any  court  of  competent  jurisdiction.  "^^ 

702.  Action — measure  of  damages  for  enticing  away.    An 

action  will  lie  against  a  party  who  shall  "counsel,  entice  and 
persuade"  an  apprentice  to  depart  from  the  service  of  his  mas- 
ter; whether  the  apprentice  shall  act  upon  the  counsel  given  or 
not.26  At  common  law  the  master  may  maintain  action  against 
any  one  who  entices  away  his  servant.^^  In  an  action  for  dam- 
ages for  enticing  away  the  plaintiff's  servants,  the  following  in- 
struction was  given  to  the  jury  and  held  proper  and  correct: 
"That  the  plaintiff,  if  entitled  to  recover  at  all,  would  be  en- 
titled to  recover  the  value  of  the  services  lost,  up  to  the  time  of 
the  commencement  of  the  suit,  the  reasonable  expenses  necessar- 

prentices."      Starr    &    Curtis    An-  25 — Section  19,  chapter  9,  "Ai>- 

notated    Statutes    of   Illinois,   Vol.  prentices."      Starr    &    Curtis    An- 

1,  p.  426;  Kurd's  R.  S.  of  111.,  1905,  notated    Statutes    of   Illinois,   Vol. 

p.  161.  1,  pp.  426,  427;  Kurd's  R.  S.  of  111., 

24— Section  18,  chapter  9,  "Ap-  1905,  p.  162. 

prentices."      Starr    &    Curtis    An-  26 — HoUiday   v.   Gamble,   18   111. 

notated    Statutes    of   Illinois,   Vol.  35. 

1,  p.  426;  Kurd's  R.  S.  of  111.,  1905,  27— Bixby  v.   Dunlap,   56   N.  H. 

p.  162.  456. 
40 


626 


THE  LAW  OF  ESTATES. 


ily  incurred  in  getting  said  servants  back  again,  and  damages 
for  the  loss  of  time,  trouble  and  injury  sustained  until  the  com- 
mencement of  this  suit  in  consequence  of  the  taking  away  of  the 
servants. '  '^^ 


28 — Hays  v.  Borders,  1  Gilm. 
(6  111.)  46.  See  also  authorities 
cited  note  13  of  this  chapter,  and 
also  Sec.  21,  Chapter  64,  "Guar- 
dian and  Ward,"  Starr  &  Curtis' 
Annotated  Statutes  of  Illinois, 
Vol.  2,  p.  2086,  post  650.  That 
section   of   the   Statute   providing 


when  there  is  not  money  of  the 
ward  sufficient  to  teach  him  to 
read  and  write,  and  the  elemen- 
tary rules  of  arithmetic,  and  the 
guardian  fails  or  neglects  to  have 
him  so  educated,  the  court  shall 
have  power  to  put  out  the  ward  to 
any  other  person  for  the  purpose 
of  baviug  him  so  educated. 


CHAPTER  XXXIX 


APPOFNTMENT  AND  QUALIFICATION  OF  GUARDIANS 


Sec. 

703.  Introductory  remarks. 

704.  Who  are  minors. 

705.  The  infant  cannot  change  his 

domicile. 

706.  Appointment      of      guardian, 

jurisdiction. 

707.  Concealment       of        material 

facts  from  court,  effect. 

708.  Nomination    of    guardian    by 

court,  by  minor. 

709.  Guardian  his  duties;   custody 

of      minor,      visitation      of 
minor. 


Sec. 

710.  Testamentary    guardian;    es- 

tate, custody. 

711.  Must  qualify  and   give  bond, 

where     the     same     is     not 
waived. 

712.  The  bond  required. 

713.  Limitation. 

714.  Powers    and    duties    of   testa- 

mentary   guardian. 

715.  Testamentary   guardian,   com- 

mission, bond. 

716.  Appointment,    hearing,    bond. 

717.  Suit  on  bond. 

718.  Inventory;    form    of   same. 


Sec.  703.  Introductory  remarks.  At  common  law,  there 
were  many  kinds  of  guardians.  The  three  principal  or  general 
kinds  were  classified  as  guardians  by  nature,  by  nurture,  and  in 
socage.  The  guardians  by  nature  and  by  nurture,  were  the 
parents;  the  father  first,  and  on  his  death  the  mother.  Neither 
guardianship  by  nature  or  by  nurture  gave  the  control  of  the 
personal  or  real  estate  of  the  ward  to  such  guardians.  The 
guardianship  in  socage  was  given  to  the  next  of  kin,  and  such  ex- 
tended to  the  custody  of  the  person  and  of  the  estate,  both  real 
and  personal,  to  the  age  of  twenty-one  years,  unless  the  ward 
terminated  it  at  the  age  of  fourteen  years,  by  an  election,  so  to 
do.  This  latter  guardianship  was  generally  given  to  the  next  of 
kin,  who  could  not  possibly  inherit  from  the  ward;  however, 
since  the  enactment  of  the  laws  of  descent,  such  guardianship 
cannot  exist  in  this  country.  All  of  those  common  law  terms  at- 
taching to  guardians  have  given  way  to  statutory  enactments  in 

627 


628  THE  LAW  OF  ESTATES. 

most,  if  not  all  of  the  States  of  our  Union.  Illinois,  by  legislat- 
ive enactments  define  biit  twoj  the  statutory  guardian  and  the 
testamentary  guardian.  In  particular  cases,  however,  the  law 
recognizes  and  finds  quasi  guardians;  these  arise  where  there 
has  been  no  regular  appointment  of  a  guardian  as  directed  by 
statute,  and  where  the  general  principle  in  such  case,  is:  That 
any  person  who  takes  possession  of  an  infant's  property,  takes 
it  in  trust  for  the  infant.  Thus  the  father  may  become  a  quasi 
guardian,  but  as  such  having  possession  of  infant's  property  is 
treated  as  a  trustee  and  accountable  as  such.  As  to  the  control 
of  the  person  of  a  minor,  the  father  is  guardian  by  nature.  As 
to  the  estate  of  the  minor,  the  father  has  no  power,  without  an 
appointment,  and  in  this  way  security  is  provided  for  the  faith- 
ful performance  of  that  trust.  These  general  questions  will  of 
necessity  hereafter  arise  in  regular  order,  and  so  far  as  they  are 
useful  and  in  force  will  be  discussed.  The  authorities  cited  give 
the  common  law  relating  to  guardians  and  show  the  distinction 
between  that  law  and  the  modern  statute.^ 

704.  Who  are  minors.  The  statute  of  Illinois  entitled 
"Guardian  and  Ward"  provides:  "That  males  of  the  age  of 
twenty-one  and  females  of  the  age  of  eighteen  years  shall  be  con- 
sidered of  full  age  for  all  purposes ;  and  until  these  ages  are  at- 
tained they  shall  be  considered  minors. '  '^  We  call  attention  also 
to  section  18  of  the  act  entitled  " Conveyances, "^  providing: 
"Any  married  woman,  being  above  the  age  of  eighteen  years, 
joining  with  her  husband  in  the  execution  of  any  deed,  mort- 
gage, eonveyance,  power  of  attorney,  or  other  writing  of  or  re- 
lating to  the  sale,  conveyance  or  other  disposition  of  her  lands 
or  real  estate,  or  any  interest  therein,  shall  be  bound  and  con- 

1— Stevenson  v.  Westfall,  18  111.  Perry  v.   Carmichael,  95  111.   530; 

211;   Kester  v.  Stark,  19  111.  330;  School  Trustees  v.  Kirwin,  25  111. 

Bursen  v.  Goodspeed,  60  111.   277;  73;    Norton   v.   Hixon,   25   111.  439. 

Scliouler    on    Domestic   Relations,  2 — Section  1,  chapter  64,  "Guar- 

392,   443;    Perry   on    Trusts,    224;  dian  and  Ward"  act. 

Davis  V.  Harkness,  1  Gilm.   (111.)  3 — Section  18,  chapter  30,  "Con- 

173;  Muller  v.  Bemner,  69  111.  108;  veyance"  act. 


APPOINTMENT     AND     QUALIFICATION     OF     GUARDIAN.  629 

eluded  by  the  same,  in  respect  to  her  right,  title,  claim  or  in- 
terest in  such  estate,  as  if  she  were  sole. '  '^  Also  section  9  of  the 
act  entitled  "Husband  and  Wife."  A  deed  executed  by  a  mar- 
ried woman  under  the  age  of  eighteen  years,  for  the  conveyance 
of  her  estate,  is  void,  and  not  merely  voidable;  hence  she  is  not 
required  to  take  any  steps  after  coming  of  age  to  avoid  it.^  And 
as  to  the  effect  of  other  acts  of  a  minor  where  the  statute  ap- 
plies, as  given  above.    See  cases  cited,  notes  6  and  7. 

705.  The  infant  cannot  change  his  domicile.    The  domicile 

of  an  infant  is  that  of  his  father,  if  living ;  if  the  father  be  dead, 
then  the  domicile  of  the  infant  is  that  of  the  mother,  if  she  be 
living  and  unmarried.  If  both  parents  be  dead  or  the  mother 
living  and  married,  then  the  domicile  of  the  infant  is  that  of  the 
natural  guardian  or  the  statutory  guardian;  for  the  infant  can- 
not change  his  domicile.  But  for  the  protection  of  either  a 
guardian  or  a  ward,  a  guardian  may  be  appointed,  where  the 
'person  or  any  property  of  the  infant  may  be  found.^ 

706.  Appointment  of  guardian — jurisdiction.  Section  2  of 
the  guardian  and  ward  act  provides:  "The  County  Courts  in 
their  respective  counties  may,  when  it  shall  appear  necessary  or 
convenient,  appoint  guardians  to  minors,  inhabitants  of  or  resi- 
dents in  the  same  county,  and  to  such  as  reside  out  of  this  State 
and  have  an  estate  within  the  same,  in  the  county  where  the 
real  estate  or  some  part  thereof  may  lie ;  or  if  he  has  no  real  es- 

4— Section   9,  chapter  68,  "Hus-  1129.      (2)    Starr    &    Curtis,    etc., 

band  and  Wife"  act.  Vol.     1,   pp.    927,   928    and    cases 

5 — Harrer    v.    Wallner,    80    111.  cited;    Kurd's    1905,    p.    466.    (3) 

197.  Starr    &    Curtis,    etc.,    Vol.    2,    p. 

6— Stevenson  v.  Westfall,  18  111.  2126;   Vol.  4,  p.  674;   Kurd's  1905, 

209.  p.  1147.     (4)    Kurd's  R.  S.  of  111., 

7 — Sections  3  and  6,  chapter  89,  1905,     section     amended     and     in 

"Marriages,"    section     1,     chapter  force  July  1,  1905,  pp.  1353,  1354. 

148,   "Wills."     As  to  statute  cita-  (7)  Starr  &  Curtis,  etc.,  Vol.  3,  p. 

tions  notes  3,  4,  5  and  7,  see  Starr  4022;  Kurd's  1905,  p.  2050. 
&  Curtis  Annotated  Statutes  of  Illi-        S — Lamar   v.    Micou,    112   U.    S. 

nois,  Vol.  2,  p.  2075,  and  cases  452;  Gillett  v.  Wiley,  126  111.  310. 
cited;  Kurd's  R.  S.  of  111.,  1905,  p. 


630  THE  LAW  OF  ESTATES. 

tate,  then  in  any  county  where  he  may  have  personal  property. '  '^ 
The  County  Court  having  full  jurisdiction  of  matters  of  probate 
and  guardianship,  is  a  court  of  limited,  but  not  of  inferior,  juris- 
diction. It  is  a  court  of  record,  and  its  judgments  are  to  be  up- 
held by  the  same  presumptions  applicable  to  the  judgments  of 
other  courts  of  record.^  <>  By  the  statute  of  Illinois,  it  is  only  in 
the  event  that  a  minor  is  a  non-resident  of  the  State,  that  the 
element  of  an  estate  or  property  is  essential  to  give  jurisdiction 
to  a  court  to  appoint  a  guardian.  ^^  The  authorities  hold  an 
order  of  court  appointing  a  guardian,  regular  upon  its  face  and 
not  void  for  want  of  jurisdiction,  cannot  be  collaterally  at- 
tacked.i2 

707.    Concealment    of   material   facts    from   court — effect. 

When  an  applicant  for  guardianship  letters  is  in  possession  of 
facts  which  he  has  every  reason  to  believe  would  materially  in- 
fluence the  court  in  acting  upon  his  application,  it  is  his  duty  to 
disclose  them ;  and  if,  from  a  corrupt  motive  and  with  the  inten- 
tion of  over-reaching  the  court,  he  suppresses  them,  he  is  guilty 
of  a  wrong.i3  In  equity  the  suppression  of  facts  which,  if 
known,  would  have  prevented  a  purchase,  vitiates  the  sale.^* 
Where  confidential  relations  exist,  such  as  those  between  prin- 
cipal and  agent,  the  secret  acquisition  of  the  title  or  rights  of 
property  of  the  principal,  by  the  agent,  whether  under  legal 
process    or    otherwise,    is    such    a    concealment    of    facts    as 

9 — Section  2,  chapter  64,  "Guar-  Davis    v.    Hudson,    29    Minn.    27; 

dian  and  Ward."     Starr  &  Curtis  Johnson   v.   Beasley,   65  Mo.   250; 

Annotated     Statutes     of     Illinois,  People   v.   Medart,   166   111.   351. 
with  Jones  &  Addington's  Supple-        11 — Barnsback  v.  Dewey,  13  111. 

ments    thereto,    Vol.    2,    p.    2076;  App.  581. 

Vol.  4,  p.  66.7;  and  cases  cited  un-         12 — People   v.    Medart,    166    111. 

der  section  of  statute;    Hurd's  R.  351,  and  cases  cited  in  opinion. 
S.  of  111.,  1905,  p.  1129.  13— Lockridge  v.  Foster,  4  Scam. 

10 — Propts   V.   Meadows,   13    111.  (111.)    569;    Aortson  v.   Ridgeway, 

157;    People  v.  Gray,  72   111.  343;  18   111.   23;    Jackson   v.   Wilcox,   1 

Bostwick  V.   Skinner,  80  111.  147;  Scam  (111.)  344;  Pease  v.  Roberts, 

People  V.  Seelye,  146  111.  189;   Ex  16  111.  App.  634. 
parte    Burkhardt,     16     Tex.     470;         14 — Lockridge  v.  Foster,  4  Scam. 

Lyne    v.  Sanford,     82    Tex.    58;  (111.)   569. 


APPOINTMENT     AND     QUALIFICATION     OF    GUARDIAN.     631 

equity  will  relieve  against.^'^  Wherever  there  is  a  relation 
which  puts  one  party  in  the  power  of  the  other,  a  fidu- 
ciary relation  exists.^^  Where  no  relation  of  confidence  exists, 
suppressiO'Veri  consists  in  suppressing  those  facts  which  one  is 
under  a  legal  obligation  to  communicate.  Thus,  the  concealment 
of  the  minority  of  a  feme  covert,  conveying  in  her  own  right, 
will  be  relieved  against.^'''  But  where  the  owners  of  an  estate  in 
remainder  decided  to  partition  it,  purchasing  in  the  outstanding 
life  estate,  as  the  result  of  an  agreement  between  themselves, 
undisclosed,  it  was  held  that  the  purchase  was  valid.^^  A  con- 
veyance by  a  debtor,  by  way  of  gift,  concealed  from  creditors 
with  whom  he  effected  a  compromise,  will  not  be  disturbed  where 
such  conveyance  was  made  anterior  to  incurring  the  indebted- 
ness.i^  Failure  to  disclose  is  of  no  importance  where  the  infor- 
mation, although  not  revealed,  was  known  to  and  acted  upon  by 
the  other  party.^o 

708.  Nomination  of  guardian — ^by  court — ^by  minor.  Sec- 
tion 3  of  the  Guardian  and  Ward  Act  provides:  "If  a  minor 
is  under  the  age  of  fourteen  years,  the  county  court  may  nom- 
inate and  appoint  his  guardian.  If  he  is  above  that  age,  he  may 
nominate  his  own  guardian,  who,  if  approved  by  the  court,  shall 
be  appointed  accordingly;  if  not  approved  by  the  court,  or  if 
the  minor  resides  out  of  the  State,  or  if,  after  being  cited,  he 
neglects  to  nominate  a  suitable  person,  the  court  may  nominate 
and  appoint  his  guardian  in  the  same  manner  as  if  he  was  under 
the  age  of  fourteen  years:  Provided,  that  in  aR  cases  when  a 
guardian  has  been  appointed  by  the  court  while  the  minor  was 
under  the  age  of  fourteen  years,  such  minor,  on  attaining  the 
age  of  fourteen  years,  may  at  his  election  nominate  his  own 

15— Emmons  v.  Moore,  85  111.  18— Fish  v.  Cleland,  33  111.  238; 
304;    Watt   v.    McGalliard,    67    111.     Cleland  v.  Fish,  43  111.  282. 


19 — Jackson   v.   Minor,    101   III 
550. 


513;   Davis  v.  Hamlin.  108  111.  39. 

16 — Evans  on  Agency,  256;  Kerr 
on  Fraud  and  Mistake,  182,  183. 

17 — Bryan     and      Morrison     v.        20 — Whiteside  v.  Taylor,  105  111, 
Primm,  1  111.  (Breese)   59.  496. 


632  THE  LAW  OF  ESTATES. 

guardian,  who  shall  be  appointed  by  the  court  if  deemed  a  suit- 
able person,  and  the  new  guardian  so  appointed  shall  supersede 
the  former  one,  whose  functions  shall  thenceforth  cease  and  de- 
termine; and  it  shall  be  the  duty  of  the  former  guardian  to  de- 
liver up  to  his  successor  all  the  goods,  chattels,  moneys,  title  pa- 
pers and  other  effects  belonging  to  such  minor  in  like  manner 
and  subject  to  the  same  penalties  as  are  provided  in  the  fortieth 
(40th)  section  of  this  act,  upon  the  removal,  death  or  resigna- 
tion of  a  guardian.  "21 

Where  the  Probate  Court  appointed  a  guardian  to  two  orphan 
minors,  under  the  age  of  fourteen  years,  for  the  full  time  until 
they  should  respectively  attain  the  age  of  eighteen  years,  held 
that  the  appointment  was  valid.  And,  admitting  that  the  said 
minors  might,  under  the  statute,  when  they  arrived  at  the  age 
of  fourteen  years,  choose  a  guardian  for  themselves,  who  would 
supersede  the  guardian  so  appointed  by  the  Probate  Court,  still, 
in  the  event  of  their  neglecting  or  refusing  to  choose  a  guardian 
for  themselves,  at  the  proper  age,  the  guardian  already  appoint- 
ed by  the  Probate  Court  would  continue  to  act  in  his  office  until 
the  said  minors  attained  their  majority .22 

709.  Guardian — his  duties — custody  of  minor — visitation  of 
minor.  Section  4  of  the  Guardian  and  Ward  Act  provides: 
**The  guardian  of  a  minor  shall  have,  under  the  direction  of  the 
court,  the  custody,  nurture  and  tuition  of  his  ward,  and  the 
care  and  management  of  his  estate ;  but  the  parents  of  the  minor, 
if  living,  and  in  case  of  the  death  of  either  of  the  parents,  the 
surviving  parent,  they  being  respectively  competent  to  transact 
their  own  business,  and  fit  persons,  shall  be  entitled  to  the  cus- 
tody of  the  person  of  the  minor  and  the  direction  of  his  educa- 
tion. The  parents  of  a  minor  shall  have  equal  powers,  rights 
and  duties  concerning  the  minor.    In  case  the  father  and  mother 

21— Section      3,      chapter      64,      nois,  Vol.  2,  p.  2076;  Kurd's  R.  S. 
"Guardian   and   Ward."      Starr    &     of  111.,  1905,  p.  1129. 
Curtis  Annotated  Statutes  of  Illi-         22— Young    v.    Lorain,    11    III. 

625. 


APPOINTMENT     AND     QUALIFICATION     OF    GUARDIAN.     633 

live  apart,  the  court  may,  for  good  reason,  award  the  custody 
and  education  of  the  minor  to  either  parent  or  to  some  other  per- 
son. Whenever  any  person  or  persons  makes  a  settlement  upon 
or  provision  for  the  support  or  education  of  any  minor  child,  it 
shall  be  competent  for  the  court,  in  case  either  the  father  or 
the  mother  of  such  child  be  dead,  to  make  such  order  in  relation 
to  the  visitation  of  such  minor  child  by  the  person  or  persons  so 
making  such  settlement  or  provision  as  shall  to  the  court  seem 
meet  and  proper.^^  The  interest  of  the  children  should  always 
be  taken  in  consideration  by  the  court,  when  deciding  who  shall 
have  custody  of  orphans.^'*  Where  a  decree  of  divorce  is  grant- 
ed for  the  fault  of  the  husband,  and  the  court  thereby  gives  the 
custody  of  the  child  absolutely  to  the  mother,  such  decree  takes 
away,  ipso  facto,  all  control  of  the  father  over  the  child,  until  it 
is  restored  by  the  action  of  the  proper  court.^^  The  mother's 
right  to  the  custody  of  a  child,  in  the  absence  of  the  fault  of  the 
father,  does  not  arise  during  the  father's  lifetime,  unless  so  or- 
dered by  the  court  in  a  proper  case.-^  As  to  the  control  of  the 
person  of  the  minor,  the  father  is  a  quasi  guardian  by  nature, 
and  upon  his  death  the  mother.^^ 

710.  Testamentary  guardian — estate — custody.  Section  5 
of  the  Guardian  and  Ward  Act,  provides :  ' '  The  father,  being  of 
sound  mind  and  memory,  of  a  child  likely  to  be  born,  or  of  any 
living  child,  being  a  minor  and  unmarried,  may,  by  his  last  will, 
dispose  of  the  custody  and  tuition  of  such  child,  to  continue 
during  its  minority,  or  for  a  less  time:  Provided,  no  such  will 
shall  take  effect  to  deprive  the  mother,  during  her  life,  of  the 
custody  and  tuition  of  the  child,  without  her  consent,  if  she  be  a 

23— Section      4,      chapter      64,         Zi—In  re  Smith,  13  111.  138. 

"Guardian  and  Ward."  As  amend-  25-Wilkinson  v.  Deming.  80  111. 

ed  by  act  approved  April  18,  1901.  049 

In    force    July    1,    1901.      Law    of 

1901,  p.  216.     Starr  &  Curtis  An-  26-Holson   v.   Fullerton,    4    111. 


App.  282. 

21 
1905,  p.  1129.  519. 


notated    Statutes    of   Illinois,    Vol. 

2.  p.   2077;    Kurd's   R.   S.  of  111.,        27— Perry  v.  Carmichael,  95  111. 


634  THE  LAW  OF  ESTATES. 

fit  and  competent  person  to  have  such  custody  and  tuition.  The 
mother,  being  of  sound  mind  and  memory,  and  being  sole,  or 
surviving  the  father  of  her  child,  may,  in  like  manner,  dispose 
of  the  custodj''  and  tuition  of  such  child. '  '^s  Section  6  of  4;he 
Guardian  and  Ward  Act  provides:  "The  guardianship  of  the 
infant's  estate  may  be  appointed  to  one,  and  the  custody  and 
tuition  of  the  minor  to  another.^^  A,  the  testator,  by  his  will, 
appointed  his  wife  guardian  of  his  infant  daughter,  "so  long 
as  she  should  remain  his  widow."  After  the  death  of  A,  his 
widow  took  out  letters  of  guardianship  for  the  daughter,  from 
the  Probate  Court  of  the  proper  county  under  the  appointment 
and  order  of  that  court  by  way  of  compliment  to  the  will.  The 
widow  subsequently  married  B,  and  a  payment  on  account  of  the 
estate  of  the  ward  was  then  made  to  her  husband,  B.  Held,  the 
authority  of  the  father  to  name  a  guardian  for  his  children,  is 
greater  than  that  conferred  upon  the  Probate  Court;  and  when 
the  former  has  exercised  the  right,  the  latter  cannot  act.  The 
appointment  by  the  court  was  void  for  want  of  jurisdiction. 
The  limitation  in  the  will  is  strictly  legal  and  must  be  enforced. 
The  guardianship  of  the  widow  was  terminated  by  her  marriage 
to  B,  and  at  the  time  the  payment  was  made  to  B,  the  authority 
of  his  wife  to  receive  the  money,  as  guardian  to  the  complainant, 
had  ceased;  as  completely  so  as  if  she  had  been  removed  by  a 
court  of  competent  jurisdiction.  She  had  no  more  authority  to 
receive  the  money  than  as  if  she  had  never  been  appointed 
guardian.  The  husband  of  a  guardian  has  no  right  to  possess 
or  control  the  estate  of  the  ward,  and  a  payment  to  him  on  ac- 
count of  such  estate  is  void,  unless  with  the  express  sanction  or 
direction  of  the  guardian;  which  in  this  case,  at  the  time  of  the 
payment  of  the  money  did  not  exist,  as  the  guardianship  ceased 
on  the  marriage  of  the  widow  to  B.*"^    "Where  the  custody  of  a 

28 — Section      5,      chapter      64,  Starr  &  Curtis  Annotated  Statutes 

"Guardian  and  Ward."  of    Illinois,    Vol.    2,    p.    2077,    and 

29 — Section      6,      chapter      64,  cases   cited;    Kurd's  R.   S.   of   111., 

"Guardian    and    Ward."     As      to  1905,  p.  1130. 
statute  references,  notes  28,  29,  see         30— Holmes  v.  Field,  12  111,  423. 


APPOINTMENT     AND     QUALIFICATION     OF    GUARDIAN.     635 

child  is  given  to  the  mother  by  a  decree  of  divorce,  for  the 
father's  fault,  she  may,  by  will,  appoint  a  guardian  for  such 
child ;  and  when  such  guardian  is  not  shown  to  be  an  unfit  per- 
son, and  the  child  expresses  a  desire  to  remain  with  such  guard- 
ian, who  is  a  relative  and  attached  to  the  child,  the  court,  on  the 
application  of  the  father,  will  not  give  him  its  custody .^^  A 
testator,  by  his  will,  appointed  two  of  his  sons  executors,  and 
directed  and  empowered  them  to  sell  all  real  and  personal  prop- 
erty belonging  to  the  estate,  except  the  homestead  and  household 
goods  devised  to  his  widow  for  life,  and  use  the  proceeds  for  the 
payment  of  legacies  and  for  the  support  and  education  of  the 
minor  children,  and  also  provided,  that  the  executors  should 
hold  the  estate  in  trust,  except  as  otherwise  provided,  until  the 
youngest  child  should  become  of  age,  and  further  declared:  "I 
will  that  my  executors  pay  out  of  my  estate  annually  a  sum 
which,  together  with  that  provided  in  section  third  hereof,  is 
sufficient  to  clothe,  educate  and  support  my  minor  children  until 
they  become  of  lawful  age:  ^'Held,  that  the  executors  were  made 
trustees  of  the  estate,  and,  in  effect,  testamentary  guardians  of 
the  minors,  with  the  duty  to  clothe,  educate  and  support  them, 
and  that  while  faithfully  discharging  such  duty,  the  court  had 
no  rightful  power  or  authority  to  require  the  executors  to  pay 
over  any  moneys  to  the  statutory  guardian  of  such  minors  for 
their  support  and  education.32 

711.  Must  qualify  and  give  bond,  where  the  same  is  not 
waived.  The  statute  relating  to  guardians  authorizes  a  parent 
to  appoint  a  testamentary  guardian  for  the  custody  and  educa- 
tion of  his  minor  child,  and  the  custody  of  its  property,  or  to 
give  the  custody  and  tuition  of  the  minor  to  one  and  the  custody 
of  the  property  to  another;  but  the  guardian  of  the  property  is 
required  to  give  a  bond,  as  in  other  cases,  unless  this  is  dispensed 
with  by  the  will  and  such  must  receive  a  commission  from  the 
County  Court  to  act,  and  when  such  bond  is  not  dispensed  with, 

31 — Wilkinson  v.  Deming,  80  32 — Capps  v.  Hickman,  97  III. 
111.  342.  437,  438. 


636  THE    LAW    OF   ESTATES. 

such  appointee  will  not  become  the  guardian  of  the  minor  until 
he  gives  a  bond  as  such,  and  is  conmiissioned  by  the  County 
Court.  So  if  one  appointed  by  will  as  executor  and  also  as 
testamentary  guardian,  qualifies  only  in  the  former  capacity,  so 
that  he  is  not  a  legal  guardian,  but  nevertheless  acts 
as  such  by  loaning  the  funds  of  the  estate,  which  he  might  have 
done  as  guardian  had  he  qualified  in  that  capacity,  he  will  in 
equity  be  held  liable  to  account  as  guardian ;  and  if  he  loans  the 
funds  of  the  estate  as  executor,  in  which  capacity  he  has  no  au- 
thority to  do  so,  and  a  loss  occurs,  he  will  be  required  to  make 
it  good  on  the  settlement  of  his  accounts  before  the  County 
Court.33 

712.  The  bond  required.  Section  7  of  the  Guardian  and 
Ward  Act,  provides :  ' '  The  County  Court  shall  take  of  the  guard- 
ian appointed  by  it,  a  bond,  payable  to  the  People  of  the  State 
of  Illinois,  with  at  least  two  sufficient  sureties,  to  be  approved 
by  the  court  in  a  reasonable  amount,  which  in  no  case  will  be 
less  than  double  the  amount  of  the  minor's  personal  estate,  and 
six  times  the  amount  of  the  gross  annual  income  of  the  minor's 
real  estate:  Provided,  however,  that  if  such  real  estate  is  im- 
proved or  is  covered  in  whole  or  in  part  with  timber,  or  is  im- 
proved in  part  and  in  part  covered  with  timber,  the  penal  sum 
in  said  bond  shall  be  increased  by  an  amount  at  least  double  the 
value  of  the  said  improvements,  or  of  said  timber,  or  both  as  the 
case  may  be."  The  form  of  the  bond  being  given  by  statute.^^ 
"Where,  in  an  action  on  a  guardian's  bond,  a  copy  of  the  bond  is 
admitted  in  evidence  which  recites  the  guardianship  and  the 
names  of  the  sureties,  such  recitals  are  sufficient  evidence  of  the 
appointment  of  the  guardian.     An  order  of  the  Probate  Court 

33 — Wadsworth  v.  Connell,  104  "Guardian  and  Ward."  As  amend- 
Ill.  369;  Gilbert  v.  Guptill,  34  111.  ed  by  act  approved  May  21,  1877. 
112;  Mclntyre  v.  People,  103  111.  In  force  July  1,  1877.  Laws  of 
142;  Davis  v.  Harkness,  1  Gilm.  1877,  p.  114.  Starr  &  Curtis  An- 
(111.)  173.  notated  Statutes  of  Illinois,  Vol. 
34 — Section      7,      chapter      64,  2,  p.  2078,  and  cases  cited;  Kurd's 

R.  S.   of  111.,   1905,  p.  1130. 


APPOINTMENT     AND     QUALIFICATION     OF    GUARDIAN.     637 

finding  the  amount  due  from  a  ^lardian  to  his  ward  is  con- 
clusive upon  the  guardian  and  the  sureties  on  his  bond  in  an  ac- 
tion of  debt  on  the  bond,  and  can  only  be  impeached  for  fraud 
or  mistake.3^  And  also,  where  suit  is  brought  on  bond  against 
several  sureties  and  one  of  such  appears,  contests  the  suit,  and 
appeals,  and  the  other  co-sureties  do  not,  the  one  contesting  can- 
not assign  errors  for  those  not  contesting  on  appeal.^^  And  so  a 
contribution  from  co-sureties  may  be  recovered,  where  one  of 
several  sureties  upon  a  guardian  bond  is  forced  to  pay  a  judg- 
ment recovered  on  such  bond  in  full.  He  may  recover  from 
each  of  the  several  co-sureties  a  pro  rata  share  of  the  sum  paid 
under  such  judgment  with  interest  from  the  date  of  payment; 
and  the  insolvency  of  one  or  more  of  the  sureties  cannot  operate 
to  increase  the  amounts  recoverable  against  such  as  are  sol- 
vent.3'^  Where  an  order  of  the  Probate  Court  required  the 
guardian  to  give  bond  and  security,  A  signed  such  supplemental 
bond  as  surety.  Held,  the  surety  on  the  supplemental  bond  be- 
came liable  as  an  original  obligor.^*  And  the  sureties  on  the 
original  bond  are  liable  where  the  court  requires  the  guardian  to 
give  special  bond.^^ 

713.  Limitation.  Actions  on  bonds  must  be  commenced 
within  ten  years  next  after  the  cause  of  action  accrues  under  the 
statute  of  "Limitations"  and  that  statute  also  applies  to  repre- 
sentatives where  the  action  survives,  and  to  infants  and  others 
under  disability.  But  in  equity  in  case  of  fraud,  from  the  time 
the  fraud  was  discovered,  or  might  have  been  discovered  by  due 

35— Ryan  v.  People,  165  111.  143;  37— Moore    v.    Bruner,    31    111. 

Blackburn    v.    Bell,    91    111.    434;  App.  400. 

Gillett    V.    Wiley,    126    111.    310;  38— Ammons   v.    People,    11    111. 

Neihofe    V.    People,    171    111.    246,  7. 

247.  39— Warner    v.    People,    57    111. 

36 — Richards   v.   Greene,   78   111.  202.     See  section  13,  chapter  103, 

525;   Hendrickson  v.  Van  Winkle,  "Official    Bonds"    Starr    &    Curtis 

21  111.  274;  Horner  V.  Zimmerman,  Annotated     Statutes     of     Illinois, 

45    111.   14;    Cromine  v.   Tharp,   42  Vol.    2,   p.    2835;    Kurd's  R.    S.    of 

111.   120;   Ryan  v.  People,  165   111.  111.,  1905,  p.  1419. 
143-146. 


63S  THE  LAW  OF  ESTATES. 

diligence.^ ^  But  failure  of  due  diligence  may  be  excused  if  the 
relation  of  trust  exists.*^  A  claim  against  a  guardian's  estate 
for  money  coming  into  the  deceased  guardian's  hands  belonging 
to  his  wards,  is  not  barred  within  five  years  after  the  majority  of 
the  wards.  The  claim  will  not  be  barred  so  long  as  an  action  may 
be  brought  upon  the  guardian's  bond,  to  enforce  its  recovery.*^ 
The  citation  of  a  surety  upon  a  guardian's  bond,  tAventy- 
one  years  after  the  ward  became  of  age,  to  state  his  knowledge 
of  the  guardianship  account,  the  guardian  in  the  meantime  hav- 
ing died,  does  not  revive  a  right  to  recover  from  such  surety 
any  unpaid  balance.*^  A  claim  presented  against  the  estate  of  a 
deceased  guardian  thirteen  years  after  the  claimant  became  of 
age  and  where  most  of  the  funds  received  by  the  deceased  guard- 
ian, under  the  claim  sought  against  his  estate,  was  received  before 
his  appointment  as  guardian,  it  was  held  such  claim  was  barred 
by  the  Statute  of  Limitations.** 

714.  Powers  and  duties  of  testamentary  guardian.    Section 

8  of  the  Guardian  and  Ward  Act,  provides:  "A  testamentary 
guardian  shall  have  the  same  powers  and  perform  the  same  du- 
ties within  the  scope  of  his  appointment,  as  a  guardian  appointed 
by  the  County  Court.  "^^ 

715.  Testamentary   guardian — commission — bond.     Section 

9  of  the  same  act  provides:  **A  testamentary  guardian,  except 


40— Gillett  V.  Wiley,  126  111.  310.  tions."     Starr  &  Curtis  Annotated 

41 — Same  as  note   40.  Statutes  of  Illinois,  with  Jones  & 

42 — Scheel    v.    Eidman,    77    111.  Addington's    Supplements   thereto, 

304.  Vol.    2,   pp.    2621,    2631,    2640,   and 

43 — People    v.    Stewart,    29    111.  cases  cited  under  sections  of  stat- 

App.    441.  ute  noted;  Vol.  4,  pp.  809,  811,  and 

44 — Beers  v.  Meyers,  28  111.  App.  cases  cited;    Hurd's  R.   S.   of  111., 

648;  and  see  Brooks  v.  People,  15  1905,  pp.  1332,  1333,  1334. 

111.  App.  570;   Winslow  v.  People,         45 — Section      8,      chapten      64. 

17    111.   App.   222;    Carter  v.   Tice,  "Guardian    and    Ward."      Starr    & 

120  111.  277.     See  sections  10,  16,  Curtis  Annotated   Statutes  of  Illi- 

21,    chapter   83,    entitled    "Limita-  nois,  Vol.  2,  p.  2079;  Hurd's  R.  S. 

of  111.,  1905,  p.  1130. 


APPOINTMENT   AND   QUALIFICATION  OF   GUARDIAN.     639 

for  the  custody  and  tuition  of  the  minor,  shall,  before  he  can 
act,  be  commissioned  by  the  County  Court  of  the  proper  county 
and  give  the  bond  prescribed  in  section  7  of  this  act — except, 
that  when  the  testator  has  requested  in  his  will  that  a  bond  be 
not  required,  it  shall  not  be  required  unless,  from  a  change  in 
the  situation  or  circumstances  of  the  guardian,  or  for  other  suf- 
ficient cause,  the  court  shall  deem  it  necessary  to  require  it. '  '^^ 

716.  Appointment — hearing — bond.  Section  10  of  the  same 
act,  provides:  "Upon  application  being  made  for  the  appoint- 
ment of  a  guardian,  unless  the  proper  persons  are  before  it,  the 
court  shall  assign  a  day  for  the  hearing  thereof,  and  shall  direct 
such  notice  of  the  hearing  to  be  given  to  the  relatives  of  the 
minor,  residing  in  the  county,  as  he  shall,  on  due  inquiry,  think 
reasonable.  When  any  person  shall  at  the  same  time  be  ap- 
pointed guardian  for  several  minors,  the  court  may,  if  the  es- 
tate shall  be  so  situated  as  to  make  it  more  convenient  or  ad- 
vantageous to  the  interest  of  the  ward,  include  all  in  one 
J)ond.47 

717.  Suit  on  bond.  Section  11.  "Bonds  may  be  put  in  suit 
in  the  name  of  the  People  of  the  State  of  Illinois,  to  the  use  of 
any  person  entitled  to  recover  on  a  breach  thereof,  and  dam- 
ages assessed  and  proceedings  had  thereon,  as  other  cases  of  penal 
bonds. "'^s  Where  a  guardian's  bond  signed  by  one  surety  was 
presented  to  the  court  with  the  minor's  petition  nominating  a 
guardian,  the  court  being  of  opinion  that  one  surety  was  not 
sufficient   handed  the  bond  back  to  obligator.     Later  the  signa- 

46 — Section  9,  chapter  64,  48 — Section  11,  chapter  64, 
"Guardian  and  Ward."  Starr  &  "Guardian  and  Ward."  Starr  & 
Curtis  Annotated  Statutes  of  Uli-  Curtis  Annotated  Statutes  of  Illi- 
nois, Vol.  2,  p.  2079;  Kurd's  R.  S.  nois,  with  Jones  &  Addington's 
of  111.,  1905,  p.  1130.  Supplements    thereto.    Vol.    2,    p. 

47— Section      10,      chapter      64,  2079;  Vol.  4,  p.  668,  and  cases  cited 

"Guardian    and    Ward."      Starr   &  under     section     of     the     statute 

Curtis  Annotated   Statutes  of  Illi-  noted;    Kurd's  R.   S.   of  111.,  1905, 

nois.  Vol.  2,  p.  2079;   Kurd's  R.  S.  p.  1130. 
of  111.,  1905,  p.  1130. 


640  THE  LAW  OF  ESTATES. 

tures  of  two  additional  sureties  were  obtained,  and  the  sureties 
were  pronounced  satisfactory,  the  judge  saying,  "That  is  all 
right."  The  bond  was  handed  the  judge,  who  at  the  request  of 
the  sureties  handed  the  bond  to  them,  they  taking  it  away  to  get 
another  signature.  In  this  they  were  unsuccessful,  and  nothing 
further  was  shown  as  to  the  whereabouts  of  the  bond.  Soon  af- 
ter and  before  the  guardian's  appointment,  one  of  the  sureties 
died.  Held,  there  was  not  a  delivery  of  the  bond  in  the  lifetime 
of  the  surety.  If  there  was  no  delivery  before  the  death  of  the 
surety,  it  is  clear  there  could  be  no  delivery  afterwards,  which 
would  render  the  bond  obligatory  upon  him  or  his  legal  repre- 
sentatives. ^^ 

If  a  guardian  neglects  or  fails  to  enforce  the  security  on  a 
loan  of  his  ward 's  money  until  the  remedy  is  barred  by  the  Stat- 
ute of  Limitations,  his  bondsmen  are  liable  to  the  ward  for  such 
neglect.^" 

718.  Inventory — form  of  same.  Section  12  of  Guardian  and 
Ward  Act,  provides:  "The  guardian  shall,  within  sixty  days 
after  his  appointment,  or  if  the  court  is  not  in  session  at  the  ex- 
piration of  that  time,  at  the  next  term  thereafter,  return  to  the 
court  a  true  and  perfect  inventory  of  the  real  and  personal  estate 
of  the  ward,  signed  by  him  and  verified  by  his  affidavit.  As  often 
as  other  estate  shall  thereafter  come  to  his  knowledge,  he  shall 
return  an  inventory  thereof,  within  sixty  days  from  the  time  the 
same  shall  come  to  his  knowledge."    Section  13.     "The  inven- 

49 — Brooks    v.    People,    15    111.  rule,  constituting  the   delivery   of 

App.  570;  and  to  the  point,  a  bond  a  deed,  which  may  be  analogous, 

to  be  valid  must  be  delivered  dur-  see  Bryan  v.  Wash,  2  Gilm.   (111.) 

ing  the  lifetime  of  the   principal.  557;    Gunnell   v.   Cockerill,   79   111. 

Huey  V.  Huey,  65  Mo.  689;    Jack-  79;     Bayers    v.    Spencer,    101    111. 

son  V.  Leek,  12  Wend,  106;   Jack-  429. 

son  V.  Phipps,  12  John,  418;  Cook        50 — Winslow   v.    People,    17    111. 

V.  Brown,  34  N.  H.  460;   Miller  v,  App.   222;    Dobbins   v.   First     Na- 

Physick,  24   Ark.  244;   Jackson  v.  tional  Bank,  112  111.  553;  see  also 

Rowland,  6  Wend,  666;   Prutsman  for  special  breaches  of  bond,  Gil- 

v.  Baker,  30  Wis.  644.     As  to  the  bert  v.   Guptill,   34    111.   112;    Peo- 
ple V.  Steele,  7  111.  App.  20 


APPOINTMENT     AND     QUALIFICATION     OF     GUARDIAN.     641 

tory  shall  describe  the  real  estate,  its  probable  value  and  rental, 
and  state  whether  the  same  is  encumbered,  and,  if  encumbered, 
how  and  for  how  much,  what  amount  of  money  is  on  hand,  and 
contain  a  list  of  all  personal  property,  including  annuities  and 
credits  of  the  ward,  designating  them  as  ' '  good, "  ' '  doubtful ' '  or 
"desperate,"  as  the  case  may  be.^^  Section  14  requires  the 
guardian  to  make  and  settle  his  account  at  the  expiration  of  a 
year  from  his  appointment  and  as  much  oftener  as  the  court  may 
require,52  Section  15  provides  that  a  guardian,  at  the  expiration 
of  his  trust,  shall  pay  and  deliver  to  those  entitled  thereto  "all 
the  money,  estate  and  title  papers  in  his  hands  as  guardian,  or 
with  which  he  is  chargeable  as  such. '  '^^ 

51 — Sections  12,  13,  Chapter  64,  sections  of  statute  cited  in  notes 

"Guardian  and  Ward."  51,  52  and  53,  see  Starr  &  Curtis 

52 — Section      14,      chapter  64,  Annotated     Statutes     of     Illinois, 

"Guardian  and  Ward."  Vol.  2,  p.  2080,  and  cases  cited  un- 

53 — Section      15,      chapter  64,  der    sections    14    and    15,    noted; 

"Guardian    and     Ward."     As  to  Kurd's  R-  S.  of  111.,  1905,  p.  1131. 


41 


CHAPTER   XL 

PUBLIC   GUARDIAN 


Sec. 

719.  Public  County  Guardian. 

720.  To  take  oath,  form  of  same. 

721.  When  such  guardian  fails  to 

qualify. 


Sec. 

722.  Public     guardian,     when     ap- 

pointed    by     the     court — 
powers  and  duties. 

723.  Bond  of  the  public  guardian. 


Sec.  719.  Public  county  guardian.  "The  Governor  of  this 
State,  by  and  with  the  advice  and  consent  of  the  Senate,  shall, 
before  the  first  Monday  in  December,  eighteen  hundred  and 
eighty-nine,  and  every  four  years  thereafter,  appoint  in  each 
county  of  this  State,  and  as  often  as  any  vacancies  may  occur, 
a  suitable  person,  to  be  known  as  public  guardian  of  such  coun- 
ty, who  shall  hold  his  office  for  four  years  from  the  first  Monday 
of  December,  eighteen  hundred  and  eighty-nine,  or  until  his  suc- 
cessor is  appointed  and  qualified,  "i 

720.  To  take  oath,  form  of  same.  Section  2.  "Every  per- 
son appointed  as  a  public  guardian  shall,  before  entering  upon 
the  duties  of  his  office,  take  and  subscribe  and  file  in  the  office 
of  the  clerk  of  the  County  Court  the  following  oath,  to-wit :  I  do 
solemnly  swear  (or  affirm  as  the  case  may  be)  that  I  will  support 
the  Constitution  of  the  United  States  and  the  Constitution  of  the 
State  of  Illinois,  and  that  I  will  faithfully  discharge  the  duties 

of  public  guardian  of  county,  according   to    the 

best  of  my  ability.  "^ 

721.  When  such  guardian  fails  to  qualify.  Section  3. 
"Whenever  any  guardian,  appointed  under  the  provisions  of 

1— Par.    53,    section    1,    chapter  2096;  Kurd's  R.  S.  of  111.,  1905,  p 

64,  "Guardian  and  Ward."    An  act  1135. 

approved  June  3,   1889.     In  force         2 — Par.    54,   sec.   2,    chapter    64, 

July  1,  1889.     Law  of  1889,  page  "Guardian    and   Ward."      Starr   & 

165.     Starr    &     Curtis     Annotated  Curtis  Annotated  Statutes  of  Illi- 

Statutes     of     Illinois,     Vol.  2,    p.  nois,  Vol.  2,  p.  2097;  Kurd's  R.  S. 

of  111.,  1905,  p.  1135. 

642 


PUBLIC    GUARDIAN.  643 

section  three  (3)  of  the  act  entitled  'An  act  in  regard  to  guard- 
ians and  wards, '  approved  April  10,  1872,  in  force  July  1,  1872, 
shall  fail  to  qualify  as  such  guardian  at  the  expiration  of  three 
months  from  his  or  her  appointment,  it  shall  be  the  duty  of  the 
court  to  appoint  the  public  guardian  of  the  county  where  the 
minor  resides,  as  guardian  of  the  minor.  "^ 

722.  Public  guardian — ^when  appointed  by  the  court.  Sec- 
tion 4.  The  public  guardian,  when  appointed  by  the  court,  as 
provided  in  this  act,  shall  have  the  same  powers  and  his  duties 
shall  be  the  same  as  of  guardians  appointed  under  the  provisions 
of  section  three  of  the  act  entitled  "An  act  in  regard  to  guard- 
ians and  wards,"  approved  April  10,  1872,  in  force  July  1, 
1872.4 

723.  Bond  of  the  public  guardian.  Section  5.  '*It  shall 
be  the  duty  of  the  County  Court  to  require  of  a  public  guardian, 
before  entering  upon  the  duties  of  his  office,  to  enter  into  a  bond, 
payable  to  the  People  of  the  State  of  Illinois,  in  a  sum  of  not  less 
than  five  thousand  dollars,  with  two  or  more  securities,  approved 
by  the  court,  and  conditioned  that  he  will  faithfully  discharge 
all  the  duties  of  his  office,  and  the  court  may,  from  time  to  time, 
as  occasion  may  require,  demand  additional  security  of  such 
guardian,  and  may  require  him  to  give  the  usual  bond  required 
of  guardians  in  other  cases,  and  in  default  of  giving  such  bond 
within  sixty  days  after  receiving  his  commission,  or  in  default  of 
giving  additional  security  within  such  time  as  the  court  may  fix 
after  being  duly  ordered  by  said  court  so  to  do,  his  office  shall  be 
deemed  vacant,  and  upon  the  certificate  of  the  county  judge  of 
such  fact,  the  Governor  shall  fill  the  vacancy  aforesaid. '  '^ 

3 — Par.    55,   sec.    3,    chapter   64,  Curtis  Annotated  Statutes  of  Illi- 

"Guardian    and    Ward."      Starr    &  nois.  Vol.  2,  p.  2097;  Kurd's  R.  S. 

Curtis  Annotated  Statutes  of   Uli-  of  111.,  1905,  p.  1135. 

nois.  Vol.  2,  p.  2097;  Kurd's  R.  S.  5 — Par.    57,   sec.    5,    chapter   64, 

of  111.,  1905,  p.  1135.  "Guardian   and    Ward."      Starr    & 

4 — Par.    56,   sec.    4,    chapter    64,  Curtis  Annotated  Statutes  of  Uli- 

"Guardian   and   Ward."      Starr   &  nois,  Vol.  2,  p.  2097;  Kurd's  R.  S. 

of  111.,  1905,  p.  1136. 


CHAPTER   XLI 


DUTIES  AND   POWERS  OF  GUARDIANS 


Sec. 

724.  Duties   and    powers   of   guar- 

dians. 

725.  Statutory     powers.       Appear- 

ance   for    ward    in    suit. 

726.  Suits     by,     for     or     against 

wards,       guardians,       next 
friend. 


Sec. 

727.  The    power   to    contract    how 

far  binding  on  the  ward 
and  his  estate. 

728.  Management   by    guardian    of 

ward's  estate.  His  duties. 
Education  of  ward.  Ward 
put  out  and  educated. 

729.  Investments  guardian's  duty. 


Sec.  724.  Duties  and  powers  of  guardians.  The  common 
law  duties  and  powers  of  guardians  still  continue  in  this  State, 
except  as  modified  or  superseded  by  statutory  enactments.^    We 


1— Wright  V.  Cornley,  14  111. 
App.  551;  Bond  v.  Lockwood,  33 
111.  212;  Bailey  v.  Bailey,  115  111. 
551;  Hayes  v.  Mass.  Life  Ins.  Co., 
125  111.  626;  Schmidt  v.  Shaver, 
196  111.  115;  Schouler's  Domestic 
Relations  pp.  461,  462.  In  Bailey 
V.  Bailey,  supra,  a  decree  was  en- 
tered for  the  payment  of  money 
to  the  guardian  of  a  minor,  and 
the  minor  had  no  guardian  at  the 
time  the  decree  was  entered.  Held, 
such  decree  will  not  be  erroneous 
merely  from  that  fact;  for  in  such 
case  the  money  can  not  be  paid 
until  a  guardian  shall  be  appoint- 
ed and  qualified.  In  the  same 
case  it  is  also  held:  Where  a 
minor  by  his  guardian  and  attor- 
ney files  his  bill,  claiming  title  to 
certain  lands,  he  should  present 
the  grounds  showing  his  rights, 
and  if  he  does  not,  he  will  not  be 


advantage  of  his  omission.  If  the 
first  bill  is  dismissed,  the  adjudi- 
cation will  estop  him  from  again 
seeking  to  recover  the  same  prem- 
ises on  other  and  different 
grounds  not  presented  in  the  first 
suit.  In  the  early  case  of  Bond 
v.  Lockwood,  supra,  it  is  held: 
The  statute  respecting  guardians 
and  wards  was  not  designed  and 
did  not  constitute  a  complete 
code,  and  that  the  purpose  of  the 
legislature  was  to  confer  upon  the 
probate  court  the  power  to  ap- 
point guardians,  and  to  regulate 
their  conduct  according  to  the 
common  law.  The  decision  in  that 
respect  has  been  consistently  fol- 
lowed. In  Hayes  v.  Massachusetts 
Mutual  Life  Insurance  Co.  supra, 
it  is  lield:  A  guardian,  under  the 
statute  of  Illinois,  has  no  power 
to  compound  or  compromise  in  re- 


allowed  in  a  second   suit  to  take     spect  of  his  ward's  rights,  where- 

6U 


DUTIES    AND     POWERS    OF    GUARDIANS.  645 

have  heretofore  shown  the  duties  of  guardians  as  to  the  custody 
and  visitation  of  minors,  prescribed  by  statute  relating  to 
"guardian  and  ward,"  his  control  of  the  estate  of  the  minor  and 
his  custody  of  the  person.  We  have  also  shown  that  a  testa- 
mentary guardian  has  the  same  powers  and  performs  the  same 
duties,  within  the  scope  of  his  appointment,  as  a  guardian  ap- 
pointed by  the  Court  of  Probate.-  The  duty  of  the 
guardian  to  file  an  inventory,  and  make  settlement  and  account 
as  prescribed  by  the  Guardian  Act.^  But  aside  from  the  statute, 
the  common  law  duties  of  the  guardian  are  numerous,  as  regards 
the  management  of  the  estate  of  his  ward;  he  should  keep  down 
unnecessary  expense  and  incumbrances  on  the  property  of  his 
ward ;  and  generally  in  paying  out  the  money  of  his  ward  should 
be  careful  as  to  the  purpose  for  which  the  payment  is  made.  It 
is  his  duty  to  keep  property  insured  from  loss  by  fire,  pay  taxes, 
make  reasonable  repairs  and  generally  prevent  waste,  and  per- 
form such  other  acts  and  duties  as  the  court  may  sanction  and 
approve  within  the  scope  of  his  office  and  under  the  law  tending 
to  preserve  the  estate  of  his  ward.* 

725.    Statutory  powers — appearance  for  ward  in  suit.    Sec- 
tion 17  of  the  Guardian  and  Ward  Act  provides:  *'The  guardian 

by  a  less  sum  than  is  due  is  ac-  ward  is  in  pressing  need  of  funds, 

cepted,    except    under    the    appro-  the   county   court   may   order   the 

bation  or  direction  of  the  county  guardian  to  sell  the  judgment  for 

court,  and  if  he  does,  his  act  will  a    price    which   it    finds    to    be   a 

not  bind  his  ward,  and  the  ward  good  one.     See  also  15  Am.  &  Eng. 

may   disaffirm   it.     In   Schmidt  v.  Ency.   of  Law,   2d  ed.,  p.   56,  and 

Shaver,  supra,  it  is  held:    So  far  cases   cited   in  support   of  powers 

as     our     statutes     prescribe     the  of  guardian  in  text, 
powers    and    duties    of    guardians         2 — Ante,  709,  714. 
they  supersede   the   common   law,         3 — Ante,  718. 
but    the    common    law  power    of         4 — Longwith   v.    Riggs,    123    111. 

guardians    still    exists    when   con-  264;    Wright    v.    Comley,    14    111. 

sistent  with   statute.     And  where  App.  551;  Means  v.  Earles,  15  111. 

it  is  shown  to  the  probate  court  App.   273;     Hayes  v.    Mass.    Mut. 

by  a  guardian  that  a  judgment  in  Life   Ins.   Co.,  125   111.   626;    Field 

favor  of  his  ward  cannot  be  col-  v.    Herrick,    101    111.    115;    Kings- 

lected  at  that  time  and  that  the  bury  v.  Sperry,  119  111.  280;   Bai- 
ley V.  Bailey,  115  111.  551. 


646  THE  LAW  OF  ESTATES. 

shall  settle  all  accounts  of  his  ward,  and  demand  and  sue  for, 
and  receive  in  his  own  name  as  guardian,  all  personal  property 
of  and  demands  due  the  ward,  or,  with  the  approbation  of  the 
court,  compound  for  the  same,  and  give  a  discharge  to  the  debtor 
upon  receiving  a  fair  and  just  dividend  of  his  estate  and  ef- 
fects." Section  18  provides:  "He  shall  appear  for  and  repre- 
sent his  ward  in  all  legal  suits  and  proceedings,  unless  another 
person  is  appointed  for  that  purpose,  as  guardian  or  next  friend, 
but  nothing  contained  in  this  act  shall  impair  or  affect  the  power 
of  any  court  or  justice  of  the  peace  to  appoint  a  guardian  to  de- 
fend the  interest  of  a  minor  impleaded  in  such  court,  or  inter- 
ested in  a  suit  or  matter  therein  pending,  nor  their  power  to  ap- 
point or  allow  any  person  as  next  friend  for  a  minor  to  com- 
mence, prosecute  or  defend  any  suit  in  his  behalf :  Provided,  that 
any  suit  or  proceeding  may  be  commenced  and  prosecuted  by 
any  minor  by  his  next  friend,  without  any  previous  authority  or 
appointment  by  the  court,  on  such  next  friend  entering  into  a 
bond  for  costs,  and  filing  the  same  in  the  court  in  which,  or  with 
the  justice  of  the  peace  before  whom  such  suit  or  proceeding  is 
instituted. '  ''^ 

726,  Suits  by,  for  or  against  wards — guardians — next  friend. 
Suits  for  wards  must  be  in  name  of  ward,  by  their  guardian  or 
next  friend.^  The  appointment  of  a  guardian  ad  litem,  need 
not  be  predicated  upon  judicial  finding  of  infancy  or  insanity.'' 
A  disinterested  person  only  is  qualified  as  guardian  ad  litem; 
and  such  should  be  appointed  to  represent  minors'  interests.^ 

5 — Sections   17   and   18,   chapter  in  each  volume;    Kurd's  R.  S.   of 

64,     "Guardian     and     Ward."     As  111.,    1905,    p.    1131;    see   also    Fil- 

amended    by    act    approved    April  more  v.  Weeks,  12  Colo.  239.     In 

10,   1881.     In   force   July   1,   1881.  which   state   the   statute    is   simi- 

Laws  of  1881,  p.  98.     Starr  &  Cur-  lar  to  that  of  Illinois, 

tis  Annotated  Statutes  of  Illinois,  6 — Hoare   v.   Harris,   11  111.   24; 

with  Jones  &  Addington's  Supple-  Bowles  v.  Allen,  16  111.  30. 

ments   thereto,    Vol.    2,    pp.    2082,  7— Pyott  v.   Pyott,   191   111.   280. 

2083;    Vol.    4,    p.    668,    and    cases  8 — Linebaugh    v.    Atwater,    173 

cited  under  the  sections  of  statute  111.   616;   Phillips  v.  Phillips,   185 

111.  631. 


DUTIES     AND     POWERS     OF    GUARDIANS.  647 

If  the  general  guardian,  the  guardian  ad  litem  or  the  next 
friend,  does  not  properly  protect  the  interests  of  the  ward,  it  is 
the  duty  of  the  court  to  compel  such  to  do  so.^  The  next  friend 
or  guardian  cannot  by  stipulation  or  admission  surrender  the 
rights  of  the  infant  ;^^  and  such  is  unauthorized  to  waive  a 
jury. 11  A  guardian  ad  litem,  who  files  an  answer  for  infants  is 
bound  to  exercise  reasonable  care,  prudence  and  judgment;  sub- 
mitting to  the  court  all  questions  that  may  arise,  and  with  the 
advice  of  the  court,  act  under  its  direction.12  If  the  ward  has 
not  been  served  with  process,  the  guardian  has  no  power  to  enter 
the  appearance  of  the  ward  in  a  suit  against  the  latter.^''  Under 
section  18  of  the  Guardian  and  Ward  Act  a  suit  may  be  prose- 
cuted as  a  poor  person.^'*  The  bond  for  costs  in  a  suit  by  a 
minor  may  be  filed,  by  permission  of  the  court,  after  the  com- 
mencement of  suit.i^  The  bond  required  by  section  18  of  the 
Guardian  and  Ward  Act  is  not  jurisdictional.^^  A  guardian  has 
authority  to  demand  and  sue,  in  his  owti  name  to  recover  all  per- 
sonal property  and  demands  due  his  ward.^''  And  it  is  within 
the  guardian's  power  to  make  sale  of  personal  property  without 
the  order  of  court,  except  where  such  sale  is  prohibited  by  stat- 
ute.is    But  no  power  is  given  the  guardian  under  the  statute  to 

9 — Lloyd   V.   Kirkwood,   112    111.  An  affidavit  must  be  filed,  as  re- 

329;    Llnebaugh    v.    Atwater,    173  quired  by  statute,  Kurd's  R.  S.  of 

111.  616.  111.,  1905,  p.  555.     See  also  Tracy 

10— Kingsbury   v.   Buckner,   134  v.  Bible,   181   111.  333;    Chicago  & 

U.  S.  650;   Railroad  Co.  v.  Haley,  Iowa  R.  R.   Co.   v.   Lane,   130  111. 

170  111.  613.  116;    111.  Cent.  R.  R.   Co.  v.  Lati- 

11 — Lieserowitz  v.  Railroad  Co.,  mer,    128    111.    163;     Consolidated 

80  111.  App.  253.  Coal  Co,  v.  Gruber,  188  111.  585. 

12— Stunz  V.  Stunz,  131  111.  210.  15—111.  Cent.  R.  R.  Co.  v.  Lati- 

13 — Dickison    v.    Dickison,    124  mer,  28  111.  App.  552. 

111.  483.  16— Railroad    Co.    v.    Keck,    185 

li— Ante,  724;   see  Starr  &  Cur-  111.  405;    Consolidated   Coal   Co.  v 

lis  Annotated  Statutes  of  Illinois,  Gruber,  188   111.   585. 

with  Jones  &  Addington's  Supple-  17 — Muller    v.    Benner,    69    UL 

ments  thereto,  Vol.  1,  p.  1071;  Vol.  109;    Independent    Order,    etc.,    v. 

4,  p.  342  and  cases  cited  in  each  Stahl,   64    III.    App.    316. 

volume   under  section  of  statute.  18 — Schmidt  v.  McDean,  98  IlL 

App.  424. 


648  THE  LAW  OF  ESTATES. 

bring  suits  in  relation  to  the  real  estate  of  his  ward.  He  cannot 
maintain  ejectment  in  his  own  name  for  his  ward's  lands;  suit 
should  be  brought  in  the  name  of  the  ward,  who  in  such  case 
holds  the  title.^^  But  where  a  guardian  recovers  a  judgment  as 
such,  and  takes  a  conveyance  of  land  to  himself,  in  satisfaction 
thereof,  his  ward  may,  on  attaining  his  majority,  take  the  land 
or  charge  his  guardian  with  the  amount  of  the  judgment  and  ac- 
crued interest,  at  his  election,  and  if,  within  a  reasonable  time 
after  coming  of  age,  he  elects  to  take  the  land,  a  court  of  equity 
will  enforce  a  conveyance  of  the  legal  title  to  him.20  A  testator 
gave  to  his  widow,  by  his  will,  money  and  the  rents  and  profits 
of  land,  in  lieu  of  dower,  incumbered  with  the  provision  that  she 
should  maintain  and  support  his  children.  The  widow  re- 
nounced the  provisions  of  the  will,  had  dower  assigned,  and  mar- 
ried again.  Suit  was  brought  against  the  guardian  by  the  second 
husband  to  recover  for  board  and  clothing  furnished  the  ward. 
Held,  the  guardian  may  prove  that  the  wards  have  worked  for 
the  plaintiff,  and  the  value  thereof,  and  set  it  off  against  his 
claim.2i  Infants  cannot  be  deprived  of  rights  by  any  agreement 
as  to  validity  of  title.22  An  infant  is  also  incapable  of  making 
an  admission  which  would  affect  his  rights;  and  his  admissions 
cannot  be  used  against  a  third  person  who  assumes  to  stand  as 
his  trustee.  23 

727.  The  power  to  contract — 5iow  far  binding  on  the  ward 
and  his  estate.  A  guardian  cannot,  by  his  own  contract,  bind 
the  person  or  estate  of  his  ward;  but  if  he  promise,  on  a  sufficient 
consideration,  to  pay  the  debt  of  his  ward,  he  is  personally 
bound  by  his  promise,  although  he  expressly  promises  as  guar- 
dian. And  it  is  sufficient  consideration,  if  such  promise  dis- 
charge the  debt  of  the  ward;  and  a  guardian  who  thus  dis- 

19— Muller    v.    Benner,    69    111.  22— Jolly    v.    Graham,    222    111. 

109.  550. 

20 — Padfield    v.    Pierce,    72    111.  23— Baker  v.  Hamilton,  3  Colo. 

502;  Jolly  v.  Graham,  222  111.  550.  291. 

21— Meyer    v.    Temme,    72    111. 
574. 


DUTIES  AND  POWERS  OF  GUARDIANS.  649 

charges  the  debt  of  his  ward,  may  lawfully  indemnify  himself 
out  of  the  ward's  estate;  or,  if  he  be  discharged  from  his  guar- 
dianship, he  may  have  an  action  against  the  ward  for  money 
paid  for  his  use.^*  But  the  contract  must  be  consummated  and 
binding  on  the  guardian;  a  mere  negotiation  for  a  loan  as 
guardian,  where  no  money  passes,  will  not  be  enforced  in  equity 
on  the  contract,  even  when  the  guardian  gives  his  own  notes, 
and  contracts  to  give  a  mortgage  on  the  ward's  land.^s  The 
guardian  has  no  power  to  contract  to  sell  or  convey  the  real 
estate  of  his  ward.-"  AVhere  a  guardian  has  ward  laboring  in  his 
interest,  and  rendering  the  guardian  services,  he  is  not  permitted 
to  charge  the  ward  with  board  furnished  by  him  as  guardian, 
unless  he  credits  the  ward  with  the  value  of  his  services.^^ 
Where  a  ward,  shortly  after  arriving  at  age,  was  induced  by  a 
guardian,  and  before  settlement  of  his  accounts,  to  convey  to 
him,  real  estate  for  the  express  consideration  of  $1,300,  he  pay- 
ing the  ward  but  $600,  and  representing  that  indebtedness 
amounting  to  $700  was  existing  against  the  land,  when  such 
was  not  the  ease,  it  was  held,  that  as  the  conveyance  was  made 
upon  a  misapprehension  of  facts  induced  by  the  guardian,  the 
transaction  could  not  be  sanctioned  in  equity.^s  But  the  rule 
is  well  settled,  that  a  valid  contract  may  be  made  between  gaiar- 
dian  and  ward  shortly  after  the  ward  attains  his  majority, 
where  it  appears  a  full  consideration  had  been  paid,  and  no 
undue  influence  had  been  exerted.^^  We  have  heretofore  and 
under  different  heads  cited  many  cases,  where  the  guardian  by 
fraud  or  undue  influence  had  imposed  upon  the  ward  before 
and  after  majority  and  in  every  such  a  case  a  court  of  equity  will 
set  such  transaction  aside.    As  a  general  rule,  the  father  is  en- 

24 — Parsons    on   Contracts,   Vol.  26 — Boughton    v.    Cameron,    99 

1,   p.   136;    Sperry   v.    Fanning,   80  111.  App.   604. 

111.  371;  Cunningham  v.  R.  R.  Co.,  27— Hazelrigg  v.  Pursley,  69  111. 

77  111.  179.  App.  472. 

25— Noble    v.    Runyan,    85    111.  28— Wickiser  v.  Cook,  85  111.  69. 

618;  Field  v.  Herrick,  101  111.  115;  29 — Reeve's  Domestic  Relations, 

Nichols  V.   Sargent,   125   111.   309.  p.  475;    Wickiser  v.   Cook,  85   111. 

69. 


>^ 


650  THE  LxUV  OF  ESTATES. 

titled  to  the  earnings  of  a  son  during  minority ;  but  where  a  mi- 
nor son  contracts  on  his  own  account,  for  his  services,  with  the 
knowledge  of  his  father,  who  makes  no  objection,  there  is  an  im- 
plied assent,  that  the  son  shall  be  entitled  to  his  eamings.^^  Ex- 
ecutory contracts  of  infants  are  voidable  and  not  binding  upon 
them,  unless  ratified  after  reaching  majority.  But  there  is  an 
exception  to  this  rule,  where  necessaries  are  contracted  for  un- 
der certain  circumstances  and  where  the  minor  does  not  live 
with  his  parents.^i 

728.  Management  by  guardian  of  war-i's  estate — ^his  duties 
— education  of  ward — ward  put  out  and  educated.  Section  19 
of  the  Guardian  and  Ward  Act,  provides:  "The  g-uardian  shall 
manage  the  estate  of  his  ward  frugally  and  without  waste,  and 
apply  the  income  and  profit  thereof,  so  far  as  the  same  may  be 
necessary,  to  the  comfort  and  suitable  support  and  education 
of  his  ward."  Section  20.  "The  guardian  shall  educate  his 
ward,  and  it  is  made  the  duty  of  all  civil  officers  to  give  infor- 
mation of  any  neglect  of  the  guardian  to  his  ward."  Section 
21.  "When  there  is  not  money  of  the  ward  sufficient  to  teach 
him  to  read  and  write,  and  the  elementary  rules  of  arithmetic, 
and  the  guardian  fails  or  neglects  to  have  him  so  educated,  the 
court  shall  have  power  to  put  out  the  ward  to  any  other  person 
for  the  purpose  of  having  him  so  educated.  "^^  The  common  law 
powers  still  exist  in  Illinois  where  not  changed  or  modified  by 
statute  f^  and  the  statutory  enactments,  with  the  aid  of  the  court, 
will  enable  a  guardian  to  meet  every  duty  in  the  management  of 
his  ward's  estate  that  may  arise  during  his  term  of  office.  But 
he  cannot  delegate  his  powers,  he  must  perform  them.^^     The 

30— Birdsall     v.     Waggoner,     4  2085,  2086;  Vol.  4  p.  668;  Vol.  5.  p. 

Colo.   264.  284,  and  authorities  cited  on  pages 

31 — Hutchinson   v.   McLaughlin,  of   volumes    noted;    Kurd's   R.    S. 

15  Colo.   429.  of  111.,  1905,  p.  1131. 

32— Sections  19,  20,   chapter  64,  33— Schmidt  v.  Shaver,  196  111. 

"Guardian    and    Ward."      Starr    &  115,   and  see  notes  1,  2,  3  and   4 

Curtis  Annotated   Statutes  of  Illi-  of  this  chapter, 

nois,    with    Jones    &    Addington's  34 — Mason     v.     Wait,    4     Scam. 

Supplements   thereto,    Vol.    2,    pp.  (111.)  127. 


DUTIES     AND     POWERS     OF    GUARDIANS.  651 

husband  of  a  ^ardian  has  no  right  to  possess  or  control  the 
estate  of  a  ward,  except  by  express  direction  of  the  court.''^  In 
order  to  obtain  the  ward's  share  of  rents  and  profits  in  his 
estate,  it  is  the  guardian's  duty  to  institute  proceedings  for 
the  assignment  of  dower .ss  And  insure  the  ward's  property 
against  the  risk  of  fire.^"^ 

729.  Investments — guardian's  duty.  Section  22  of  the 
Guardian  and  Ward  Act,  provides :  * '  It  shall  be  the  duty  of  the 
guardian  to  put  and  keep  his  ward's  money  at  interest  upon 
security  to  be  approved  by  the  court,  or  by  investing,  on  ap- 
proval of  the  court,  the  same  in  United  States  bonds,  or  in  the 
bonds  of  any  county  or  city  which  are  not  issued  in  aid  of 
railroads,  and  where  the  laws  do  not  permit  said  counties  or 
cities  to  become  indebted  in  excess  of  five  per  cent  of  the  assessed 
valuation  of  property  for  taxation  therein,  and  where  the  total 
indebtedness  of  such  County  or  City  does  not  exceed  five  per 
cent  of  the  assessed  valuation  of  property  for  taxation  at  the 
time  of  such  investment.  Personal  security  may  be  taken  for 
loans  not  exceeding  one  hundred  dollars.  Loans  upon  real  estate 
shall  be  secured  by  first  mortgage  thereon  and  not  to  exceed 
one-half  the  value  thereof.  No  mortgage  loan  shall  be  made 
for  a  longer  time  than  five  years  nor  beyond  the  minority  of 
the  ward:  Provided,  the  same  may  be  extended  from  year  to 
year  without  the  approval  of  the  court.  The  guardian  shall 
be  chargeable  with  interest  upon  any  money  which  he  shall 
wrongfuUy  or  negligently  allow  to  remain  in  his  hands  unin- 
vested after  same  might  have  been  invested,  "^s  Loans  upon 
real  estate  security  made  by  the  guardian,  without  the  approval 
of  court  is  at  guardian's  risk;  if  a  loss  occurs  in  such  case,  he 

35— Holmes    v.     Field,     12    111.         38— Section      22,      chapter      64, 

424 ;  Lehman  v.  Rothbarth,  111  111.  "Guardian  and  Ward."  As  amend- 

200.  ed    by   act   of   May   13,   1905.     In 

36— Clark    v.    Burnside,    15    111.  force  July  1,  1905.     See  Kurd's  R. 

62.  S.  of  111.   1905,  p.  1132.     Laws  of 

37— Means  v.  Earls,  15  111.  App.  1905,  p.  287. 
273. 


652  THE  LAW  OF  ESTATES. 

is  liable;  good  faith  will  not  exonerate  him.^^  Investments  of 
the  ward's  estate  are  governed  by  statute  of  this  State  and  not 
by  the  common  law,*** 

39 — Hughes   v.   People,    111    III.  Courts    can    not   dispense   with   a 

457.  defective     execution      of      power 

40 — Lamar  v.   Micou,  112  U,   S.  created  by  law,   or  dispense  with 

452;  Same  v.  Same,  114  U.  S.  218;  any    of    the    formalities     required 

Hayes  v.  Mass.  Life  Ins.  Co.,  125  thereby  for  its  due  execution,  for 

111.  626;   Holeman  v.  Blue,  10  111.  otherwise    the     whole     policy     of 

App.  130;  Hughes  v.  People,  10  111.  legislative    enactments    might    be 

App.  148.  overturned.     Hunt  v.   School  Dis- 

The  guardian  can  not  lawfully  trict,    14    Vt.    300;    39    Am.    Dec. 

give  away  his  ward's  right.     Ed-  225;    County  of  Hardin  v.  McFar- 

sall  V.  Vandemark,  39  Barb.  599;  Ian,  82  111.  138;  Tamm  v.  Lavalle, 

Bank     v.     Norton,     1     Hill,     576.  92   111.   270. 


HATER   XLI 

LEASING,  MORTGAGING  AND  SELLING  REAL  ESTATE 
BY  GUARDIANS 


Sec. 
730. 
731. 
732. 

733. 


734. 


735, 

736. 
737. 

738. 


Leasing  real  estate. 

Mortgage  of  real  estate. 

Foreclosure  of  such  mortgage. 
No  strict  foreclosure. 

The  matter  of  jurisdiction  un- 
der foreclosure  of  such 
mortgage. 

Act  of  guardian  in  borrowing 
money  by  leave  of  court  is 
ministerial  act. 

Foreclosure  in  United  States 
Court  of  such  mortgage. 

Bill  of  review. 

Proceedings  to  sell  real  es- 
tate. 

Requisites  of  petition, — filing. 


Sec. 

739.  Notice,  practice,  sale. 

740.  Return;  sale  approved,  title. 

741.  Proceeds  of  sale;  account,  re- 

investment. 

742.  Non-resident  guardian.     Pow- 

ers to  collect. 

743.  Transfer  of  real  estate  to  non- 

resident guardian. 

744.  Conditions  follow  grant  of  au- 

thority to  non-resident  guar- 
dian. 

745.  Sale  of  real  estate  by  non-resi- 

dent guardian. 
746   Notice,  terms  of  sale. 
747.  Deeds,  title,  bond  for  costs. 


Sec.  730.    Leasing  real  estate.     Section  23  of  the  guardian 

and  ward  act  provides:  ''The  guardian  may  lease  the  real 
estate  of  the  ward  upon' such  terms  and  for  such  length  of  time, 
not  extending  beyond  the  minority  of  the  ward,  as  the  County 
Court  shall  approve.  "^  It  is  the  duty  of  the  guardian  to  lease 
such  portion  of  the  estate  as  is  set  apart  to  his  ward;  and  the 
guardian  and  his  estate,  for  a  failure  to  lease  is  liable  for  what- 
ever might  have  been  received  by  a  faithful  discharge  of  such 
duty.2  By  statute  of  Illinois,  the  guardian  has  no  power  or 
right  to  take  possession  of  the  real  estate  of  his  ward;   the  title 

1— Section      23,      chapter      64,  cited;    Kurd's  R.   S.   of  111.,  1905, 

"Guardian    and    Ward."      Starr   &  p.  1132. 

Curtis  Annotated  Statutes  of  Illi-  2— Clark  v.  Burnside,  15  111.  63. 
nois.    Vol.    2,    p.    2087,    and    cases 

653 


654  THE  LAW  OF  ESTATES. 

to  such  or  the  interest  if  any,  in  the  real  estate  is  vested  in  the 
ward.  The  guardian  as  such  in  his  own  name  has  no  right  or 
authority  to  bring  actions  in  relation  to  the  real  estate;  his 
power  over  the  real  estate  of  the  ward  is  limited  to  leasing  the 
same  "upon  such  terms  and  for  such  length  of  time  as  the 
County  Court  shall  approve."  Though  this  power  is  so  limited, 
he  may  institute  proceedings  to  assign  dower  to  clear  the  way 
for  renting  of  the  ward's  property  and  this  is  considered  a 
duty  in  such  case.^  A  guardian  who  leases  the  lands  of  his 
ward  without  the  approval  of  the  court,  cannot  bind  his  ward; 
such  transaction  is  void  as  to  the  latter.'*  And  where  the  guar- 
dian stipulated  in  the  lease  for  the  purchase  of  improvements 
put  on  the  premises  by  the  tenant,  at  the  end  of  the  term,  and 
signed  the  lease,  "as  guardian"  he  bound  himself  personally, 
notwithstanding  he  proceeded  with  the  approval  of  the  County 
Court.  His  remedy,  if  any,  is  to  be  reimbursed  by  the  ward  in 
such  case.5  There  are  no  implied  covenants  in  a  lease  made 
by  a  guardian ;  express  covenants,  if  any,  will  bind  the  guardian.^ 

731.  Mortgage  of  real  estate.  Section  24  of  the  same  act, 
provides:  "The  guardian  may,  by  leave  of  the  County  Court, 
mortgage  the  real  estate  of  the  ward  for  a  term  of  years  not 
exceeding  the  minority  of  the  ward,  or  in  fee,  but  the  time  of 
the  maturity  of  the  indebtedness  secured  by  such  mortgage 
shall  not  be  extended  beyond  the  time  of  minority  of  the 
ward."'  Section  25.  "Before  any  mortgage  shall  be  made,  the 
guardian  shall  petition  the  County  Court  for  an  order  author- 
izing such  mortgage  to  be  made,  in  which  petition  shall  be  set 
out  the  condition  of  the  estate,  and  the  facts  and  circumstances 


3— Muller  v.  Benner,  69  111.  pp.  54;  Hughes  v.  People,  10  111.  App. 

109,  110;   McElheny  v.  Musick,  63  148. 

Ill,   328;    Morgan   v.    Johnson,    68  5— Nichols   v.    Sargent,    125    111. 

111.  190;  Field  v.  Herrick,  101  111.  309. 

110;    Burton   v.    Cameron,    99    111.  6— Webster  v.  Conley,  46  111.  13. 

App.  604.  7 — Section      24,      chapter      64, 

4 — Field  v.  Herrick,  5  111.  App.  "Guardian  and  Ward." 


LEASING  REAL  ESTATE,  ETC.  655 

on  which  the  petition  is  founded  and  a  description  of  the  prem- 
ises sought  to  be  mortgaged."^ 

732.  Foreclosure  of  such  mortgage — no  strict  foreclosure. 

Section  26.  "Foreclosures -of  mortgages  authorized  by  this  act 
shall  only  be  made  by  petition  to  the  County  Court  where  let- 
ters of  guardianship  were  granted  or  in  case  of  non-resident 
minors,  in  the  County  Court  in  which  the  premises,  or  some  part 
thereof,  are  situated,  in  which  proceeding  the  guardian  and 
ward  shall  be  made  defendants ;  and  any  sale  made  by  virtue  of 
any  order  or  decree  of  foreclosure  of  such  mortgage  may,  at 
any  time  before  confirmation,  be  set  aside  by  the  court  for  in- 
adequacy of  price,  or  other  good  cause,  and  shall  not  be  bind- 
ing upon  the  guardian  or  ward  until  confirmed  by  the  court. 
Section  27  of  the  same  act,  provides:  **No  decree  of  strict  fore- 
closure shall  be  made  upon  any  such  mortgage,  but  redemption 
shall  be  allowed  as  is  now  provided  by  law  in  cases  of  sales  under 
executions  upon  common  law  judgments. '  '^ 

733.  The  matter  of  jurisdiction  under  foreclosure  of  such 
mortgage.  The  probate  courts  provided  for  in  the  constitution, 
are  courts  of  limited  jurisdiction,  and  this  jurisdiction  em- 
braces four  subjects:  1.  All  probate  matters,  embracing  the 
settlement  of  the  estates  of  deceased  persons,  and  in  that  con- 
nection, cases  for  the  sale  of  real  estate  of  deceased  persons 
for  the  payment  of  their  debts;  2.  The  appointment  of  guar- 
dians and  the  settlement  of  their  accounts;  3.  The  appointment 
of  conservators,  and  the  settlement  of  their  accounts,  and  4. 
All  matters  relating  to  apprentices.^^*  In  a  mandamus  proceed- 
ing, it  is  said:  "It  is  evident  that  in  1873,  when  this  mortgage 

8 — Section       25,     chapter      64,  9 — Section      26,      chapter      64, 

"Guardian  and  Ward."   See  as  to  "Guardian   and    Ward."      Starr    & 

statute  reference,   notes   7   and  8,  Curtis  Annotated   Statutes  of  Illi- 

Starr  &  Curtis  Annotated  Statute  nois,   Vol.   2,   pp.   2088,   2089,    and 

of  Illinois,  Vol.  2,  pp.  2087,  2088,  cases  cited;    Kurd's  R.   S.  of  111., 

and  cases  cited;    Kurd's  R.   S.   of  1905,  p.  1132.    Law  of  1869,  p.  372, 

111.,  1905,  p.  1132.  Sec.  2. 

10—96  111.  377. 


656  THE  LAW  OF  ESTATES. 

was  made,  the  County  Court  of  Cook  county  had  jurisdiction  of 
the  foreclosure  of  such  mortgages,  and  that  such  jurisdiction 
still  remains  in  that  court,  unless  it  has  been  otherwise  pro- 
vided by  the  general  law;  for,  by  section  4  of  the  schedule  to 
the  constitution,  it  was  provided  that  "the  County  Court  shall 
have  the  same  power  and  jurisdiction  that  they  now  possess, 
until  otherwise  provided  by  general  law."  ....  In  1877  when 
the  Probate  Court  was  created,  the  jurisdiction  over  the  foreclos- 
ure of  such  mortgages  was  not  regarded  as  any  part  of  ' '  probate 
matters,  "or  of  "  the  settlement  of  the  estates  of  deceased  persons, ' ' 
or  as  embraced  within  the  powers  of  the  County  Court  in  re- 
lation to  "the  appointment  of  guardians,"  and  the  supervision 
of  guardians  in  the  discharge  of  their  duties;  for  no  one  ever 
thought  of  instituting  proceedings  of  foreclosure  before  the 
County  Court,  until  the  passage  of  the  act  especially  authoriz- 
ing that  to  be  done,  in  1869."^^  And  again  we  have  the  ex- 
pression of  the  court  of  last  resort  where  it  is  said:  Where 
the  statute  confers  on  the  County  Court  a  jurisdiction  un- 
known to  the  common  law,  and  gives  an  appeal  from  the  judg- 
ments and  final  orders  of  that  court,  under  such  statutory 
jurisdiction,  to  the  Circuit  Court,  a  writ  of  error  will  not  lie 
from  the  Supreme  Court  to  review  the  action  of  the  County 
Court.^-  The  foreclosure  of  a  mortgage,  and,  much  less,  the 
giving  of  leave  by  the  County  Court  to  a  guardian  to  mortgage 
his  ward's  lands,  does  not  involve  a  freehold,  within  the  mean- 
ing of  the  section  relating  to  appeals  and  writs  of  error.^^  And 
section  12  of  the  act  establishing  Probate  Courts,  relating  to 
writs  of  error,  it  is  held,  is  prospective  only  in  its  operation, 
and  applies  only  to  decrees  and  orders  of  that  court,  and  does 
not  authorize  a  writ  of  error  to  review  a  decree  or  final  order 
of  the  County  Court  for  the  mortgage  or  sale  of  a  ward's  land 

11 — People    V.    Loomis,    96    111.  Co.  v.  Hall,  94  111  152;  Pinneo,  et 

377.  al,  V.  Knox,  100  111.  471;  Akin  v. 

12— Kingsbury    v.    Sperry,    119  Cassiday,  105  111.  22;   Schaeffer  v. 

111.  279.  Burnett.  221  111.  315. 

13 — See    Grand    Tower    Manfg. 


LEASING  REAL  ESTATE,   ETC.  657 

by  a  guardian.!*  But  the  right  to  foreclose  such  a  mortgage 
in  the  United  States  court,  where  the  requisite  citizenship  ex- 
ists and  the  amount  involved  is  within  that  jurisdiction,  is  not 
affected  by  such  statute;  that  court  has  jurisdiction  notwith- 
standing such  statute.! 5 

734.  Act  of  guardian  in  borrowing  money  by  leave  of  court 
is  ministerial  act.  In  the  case  of  mortgaging  the  ward 's  estate, 
no  title  passes  until  after  decree  of  foreclosure,  sale  and  con- 
firmation thereafter.  No  fact  under  the  statute  is  required  to  be 
adjudicated  before  making  the  order.  The  power  is  given  to  the 
guardian,  simply,  by  leave  of  the  court,  to  perform  the  minis- 
terial act  of  borrowing  money  and  executing  a  mortgage.  It 
might  have  been  vested  in  the  guardian  absolutely,  without  con- 
sulting the  court,  or  it  might  have  been  vested  in  some  other 
individual.!®  "Judicial  power  is  only  invoked  when  a  fore- 
closure is  sought,  and  then,  the  ward  has  all  the  rights  that  he 
can  legally  assert.  And  the  act,  itself  in  ordering,  that  the  guar- 
dian have  leave  to  mortgage,  though  by  a  court,  is  the  exercise  of 
a  ministerial,  and  not  of  a  judicial,  power,  and  therefore  pre- 
cludes the  right  to  a  writ  of  error.! '^  "No  writ  of  error  can  be 
brought  but  on  a  judgment,  or  an  award  in  the  nature  of  a 
judgment."!^  It  is  held,  under  certain  circumstances  the 
County  or  Probate  Court,  exercising  a  chancery  power  in  that 
respect,  is  empowered  to  authorize  a  guardian  to  borrow  money 
for  the  prevention  of  irreparable  injury  to  the  estate,  and  in 
such  case  the  statute  authorizes  the  court  to  empower  the  guar- 
dian to  mortgage  the  real  estate  of  the  ward.  But  the  money 
borrowed  under  such  order,  can  only  be  applied  to  the  purpose 
for  which  the  authority  was  given.     And  so  if  a  mortgage  be 

14 — A7ite,    chapter    1,   sec.    13;  16 — Cooley's    Const'l     Lim.     1st 

Kingsbury  v.  Sperry,  119  111.  279.  ed.,   98,   99. 

15 — Davis    V.    James,    10    Biss,  17 — 2  Tid's  Practice,  3d  Am.  ed., 

51;  United  States  Mortgage  Co.  v.  1140,  1141. 

Sperry,   24    Fed.   Rep.   838;    Same  18 — Kingsbury    v.    Sperry,    119 

V.  Same,  138  U.  S.  313;   Same  v.  111.  285;  Kingsbury  v.  Powers,  131 

Same,  26  Fed.  Rep.  727;   Lynn  v.  III.  194. 
Lynn,  160  111.  314. 
42 


658  THE  LAW  OF  ESTATES, 

executed  by  the  guardian  upon  the  ward's  lands,  without  the 
sanction  of  the  court,  such  mortgage  is  nugatory  and  void,  so 
far  as  the  interests  of  the  ward  are  involved.^® 

735.  Foreclosure  in  United  States  court.  Borrowing  money 
to  build  upon  and  improve  ward's  estate  by  a  guardian  who 
gave  mortgage  was  sustained.  The  Probate  Court  of  Cook  county 
authorized  the  guardian  to  borrow  the  money  and  execute  the 
mortgage,  which  was  foreclosed  in  the  Federal  Court,  and  it 
was  held,  the  right  to  redeem  is  implied  though  not  mentioned 
in  a  mortgage  given  by  guardian.20 

736.  Bill  of  review.  A  ward  may,  before  bill  to  foreclose  a 
mortgage  given  by  his  guardian,  maintain  his  bill  in  equity  to 
review  the  order  of  the  County  Court  granting  leave  to  give 
such  mortgage,  and  thereby  take  advantage  of  every  objection 
that  might  be  urged  on  writ  of  error. 21  And  so  this  right  ex- 
ists to  have  the  entire  proceedings  reviewed,  on  bill  to  foreclose 
such  mortgage  by  the  ward.22  But  in  such  case  the  guardian 
is  treated  as  a  trustee  and  is  entitled  to  be  reimbursed  for  all 
his  costs  and  expenses  in  accounting.  And  if  both  parties  are 
materially  in  fault,  the  expenses  should  be  borne  equally.^^  And 
in  a  proceeding  to  foreclose  such  a  mortgage  the  validity  of 
the  mortgage  and  notes  may  be  questioned.^* 

737.  Proceedings  to  sell  real  estate.  Section  28  of  the 
Guardian  and  Ward  Act,  provides:  ''On  the  petition  of  the 
guardian  the  County  Court  of  the  county  where  the  ward  re- 
sides, or  if  the  ward  does  not  reside  in  the  State,  of  the  county 
where  the  real  estate,  or  some  part  of  it  is  situated,  may  order 
the  sale  of  the  real  estate  of  the  ward,  for  his  support  and 

19 — Merritt   v.   Simpson,   41   111.  22 — Kingsbury    v.    Powers,    131 

391.  111.   182. 

20 — United  States  Mortgage  Co.  23 — Kingsbury    v.    Powers    131, 

V.  Sperry,  138  U.  S.  313.  111.  182-196;   Kingman  v.  Harmon, 

21— Kingsbury     v.     Sperry,    119  32  111.  App.  529. 

111.   279.  24— Deland    v.    Metzger,    21   111. 

App.  89. 


LEASING  REAL  ESTATE,  ETC,  659 

education,  when  the  court  shall  deem  it  necessary,  or  to 
invest  the  proceeds  in  other  real  estate  or  for  the  purpose  of 
otherwise  investing  the  same:  Provided,  the  said  County 
Court  shall  make  no  order  for  a  sale  under  said  petition 
until  the  said  guardian  shall  have  executed  and  filed  a  bond, 
payable  to  the  People  of  the  State  of  Illinois,  with  at  least 
two  sufficient  sureties  to  be  approved  by  the  court,  in  dou- 
ble the  value  of  the  real  estate  by  said  petition  sought  to  be 
sold,  conditioned  for  the  due  and  faithful  accounting  for,  and 
disposition  of  the  proceeds  of  all  real  estate  that  may  be  sold 
by  him,  under  such  order,  in  the  manner  provided  by  law; 
which  bond  may  be  put  in  suit  in  the  name  of  the  People  of  the 
State  of  Illinois,  to  the  use  of  any  person  entitled  to  recover 
on  a  breach  thereof,  and  damages  assessed  and  proceedings  had 
thereon  as  in  other  cases  of  penal  bonds.  "^^  The  guardian  has 
no  power  to  sell  real  estate  of  his  ward  unless  authorized  by 
court.2^  And  in  this  regard  the  guardian  must  follow  the  di- 
rections of  the  court.^'^  The  proceeding  is  purely  statutory, 
and  the  requirements  of  the  statute  must  be  followed,  a  ma- 
terial deviation  is  fatal  to  the  jurisdiction  of  the  court.^^ 
Where  a  petition  was  filed  by  a  guardian  for  leave  to  sell  the 
real  estate  of  his  ward,  for  the  sole  purpose  of  paying  off  a 
mortgage  on  the  property,  the  lower  court  having  granted  an 
order  for  sale,  the  case  was  taken  on  appeal  by  the  wards  to 
the  Supreme  Court,  and  by  that  court  reversed.  It  being  held, 
in  such  case  the  proceedings  should  not  be  sustained,  unless 
there  is  something  shown  in  the  petition,  more  than  the  mere 

25 — Section      28,      chapter      64.  1132.     See  also  section  44,  chapter 

"Guardian  and  Ward."  As  amend-  41,  "Dower  Act"   {ante  630)   Starr 

ed  by  act  approved  May  21,  1877.  &     Curtis,     etc..  Vol.    2,  p.     1479; 

In  force  July  1,  1877.  Laws,  1877,  Kurd's,  1905,  p.  772. 

p.  114.     Starr  &  Curtis  Annotated  26 — Mason    v.    Wait,    4    Scam, 

Statutes  of  Illinois,  with  Jones  &  (111.)    127. 

Addington's    Supplements   thereto,  27 — Lloyd  v.  Malone,  23  111.  43; 

Vol.  2,  p.  2089;  Vol.  5,  p.  284,  and  Fitzgibbon    v.    Lake,    29    111.    165; 

cases  cited  under  section  of  stat-  Spring  v.  Cane,  86  111.  580. 

ute;   Kurd's  R.  S.  of  111.  1905,  p.  28— Spellman  v.  Dowse,  79  111. 

66. 


660  THE    LAW    OF    ESTATES. 

opinion  of  the  guardian,  and  by  which  the  court  can  see,  that 
a  sale  would  be  more  advantageous  to  the  interest  of  the  wards, 
than  a  sale  upon  the  foreclosure  of  the  mortgage.^^ 

738.  Requisites  of  petition-filing.  ''The  petition  shall  set 
forth  the  condition  of  the  estate  and  the  facts  and  circum- 
stances on  which  the  petition  is  founded,  and  shall  be  signed 
by  the  guardian  and  verified  by  his  affidavit,  and  shall  be  filed 
at  least  ten  days  before  the  commencement  of  the  term  of  court 
at  which  the  application  shall  be  made.^o 

739.  Notice — practice — sale.  Section  30.  "Notice  of  such 
application  shall  be  given  to  all  persons  concerned,  by  publi- 
cation in  some  newspaper  published  in  the  county  where  the 
application  is  made,  at  least  once  in  each  week  for  three  succes- 
sive weeks,  or  by  setting  up  written  or  printed  notices  in  three 
of  the  most  public  places  in  the  county,  at  least  three  weeks 
before  the  session  of  the  court  at  which  such  application  shall 
be  made.  The  ward  shall  be  served  with  a  copy  of  such  notice 
at  least  ten  days  before  the  hearing  of  such  application.  "^^ 
Section  31.  "Such  application  shall  be  docketed  as  other 
causes,  and  the  petition  may  be  amended,  heard  or  continued 
for  further  notice,  or  for  other  cause.  The  practice  in  such 
cases  shall  be  the  same  as  in  other  cases  in  chancery.  "^  2  Sec- 
tion 32.  "The  court  shall  direct  notice  of  the  time  and  place 
of  sale  to  be  given,  and  may  direct  the  sale  to  be  made  on  rea- 
sonable credit,  and  require  such  security  of  the  guardian  or 
purchaser  as  the  interest  of  the  ward  may  require.  "^3  Where 
it  appears  necessary,  and  for  the  best  interest  of  the  ward  in 

29 — Greenbaum    v.    Greenbaum,  32 — Section      31,      chapter      64, 

81  111.  367.  "Guardian  and  Ward." 

30 — Section  29,  chapter  64,  33 — Section  32,  chapter  64, 
"Guardian  and  Ward."  Starr  &  "Guardian  and  Ward."  As  to  sec- 
Curtis  Annotated  Statutes  of  Illi-  tions  of  statute,  in  notes  31,  32, 
nois,  Vol.  2,  p.  2090;  Kurd's  R.  S.  33,  Starr  &  Curtis  Annotated  Stat- 
of  III.,  1905,  p.  1132.  utes    of    Illinois,   Vol.    2,    p.    2090, 

31 — Section      30,      chapter      64,  and    cases    cited    under    section; 

"Guardian  and  Ward."  Kurd's  R.  S.  of  111.,  1905,  p.  1133. 


LEASING  REAL  ESTATE,  ETC.  661 

such  proceeding  to  sell  land  by  guardian,  the  court  may  order 
lands  surveyed,  subdivided  and  platted.-'^'*  Where  a  decree  re- 
cited ''notice  of  this  application  and  due  notice  to  ward  has 
been  given"  held  sufficient.^^  Where  the  statute  requires  notice 
of  the  application  of  a  guardian  to  sell  real  estate  to  be  pub- 
lished in  a  newspaper  at  least  once  in  each  week  for  three  suc- 
cessive weeks,  or  to  be  posted  in  three  public  places  at  least 
three  weeks  before  the  session  of  the  court  at  which  the  appli- 
cation is  to  be  made,  it  is  sufficient  if  the  notice  is  published  for 
three  successive  weeks  in  a  newspaper,  and  the  first  publication 
is  made  three  weeks  before  the  session  of  the  court.^**  In  the 
following  case,  after  the  lapse  of  twenty  years  from  the  date 
of  a  decree  for  the  sale  of  a  ward's  land  by  his  guardian,  and 
the  destruction  of  the  court  records,  oral  proof  of  the  publica- 
tion of  notice  by  the  guardian  of  his  intention  to  present  the 
petition  for  leave  to  sell,  in  one  of  the  papers  of  the  county  for 
the  time  required  by  law,  taken  in  connection  with  a  recital  in 
what  was  proved  to  be  a  correct  copy  of  the  original  decree,  that 
it  appeared  to  the  court  "that  due  proof  of  the  time,  place, 
and  intention  of  presenting"  such  petition  was  made  by  publi- 
cation in  one  of  the  public  papers  of  the  county  ''for  six  suc- 
cessive weeks,"  was  held  satisfactory  proof  that  the  requisite 
notice  of  the  application  to  sell  had  been  given.^^  A  recital  in 
a  decree,  "that  the  court  found  the  petition  and  its  statements 
to  be  true"  on  review  by  the  Supreme  Court"  twenty-five  years 
after  its  rendition,  and  where  the  petition  for  a  guardian's  sale 
was  lost,  and  where  the  decree  shows  the  presentation  of  the 
petition,  notice  of  the  application  and  personal  notice  to  the 
ward,  it  was  held  in  such  case  jurisdiction  must  be  presumed, 
although  it  is  not  alleged  and  does  not  affirmatively  appear  of 
record,  and  such  presumption  is  only  overcome  when  the  rec- 

34 — Sections  11-13,  chapter  109,  35 — Spellman     v.     Matthewson, 

"Plats,"      Starr    &    Curtis    Anno-  65  111.  306. 

tated  Statutes  of  Illinois,  Vol.  3,  p.  36 — Fry  v.  Bidwell,  74   111.  381. 

2973;    Kurd's  R.   S.   of   111.,   1905,  37— Spring  v.  Kane,  86  111.  580. 
p.  1529. 


662  THE  LAW  OF  ESTATES. 

ord  itself  shows  want  of  jurisdiction-^^  It  is  held,  the  fact  that 
a  decree  or  order  of  court  authorizing  a  guardian's  sale  may 
fail  to  fix  a  time  and  place  of  sale,  may  be  erroneous,  does  not 
effect  the  jurisdiction  and  render  the  sale  void.^^ 

740.  Return — sale  approved — title.  Section  33.  **It  shall 
be  the  duty  of  the  guardian  making  such  sale,  as  soon  as  may 
be,  to  make  return  of  such  sale  to  the  court  granting  the  order, 
which,  if  approved,  shall  be  recorded,  and  shall  vest  in  the 
purchaser  or  purchasers  all  the  interest  in  the  estate  so  sold."** 
Agreement  of  parties  not  to  bid  against  each  other  at  a  guard- 
ian 's  sale,  vitiates  the  sale.*^  Approval  by  court  is  necessary  in 
order  to  divest  title  of  ward.*-  An  order  approving  sale  was 
entered  sixteen  years  after  sale,  nunc  pro  tunc;  but  it  was 
established  by  the  records,  the  sale  in  fact  was  approved  at  the 
time  of  report  of  sale.*^  But  in  a  case  where  the  minors  proved 
seven  or  eight  years  after  the  sale  that  at  the  time  of  filing  the 
petition  for  the  order  of  sale  they  were  not  served,  and  when 
the  sale  was  made  they  were  not  residents  of  this  State.  Held, 
the  court  had  no  jurisdiction,  and  that  such  question  was  prop- 
erly raised  on  the  motion  for  the  approval  of  the  sale,  and  that 
the  sale  ought  not  to  be  approved.**  Approval  of  report  of  sale 
should  be  by  order  of  court  and  a  part  of  the  record.*^  Irregu- 
larities in  proceedings  of  guardian's  sale  of  real  estate  may 
appear  by  the  record,  but  the  sale  will  not  be  legally  invali- 
dated.*® The  exercise  of  discretion  in  approving  or  disapprov- 
ing sale  is  controlled  by  well  established  principles.*' 

741.  Proceeds  of  sale — account — ^reinvestment.  Section  34, 
provides:     "An  account  of  all  moneys  and  securities  received 

38 — Field     v.     People,    180     111.  nois,    with    Jones    &    Addington's 

376;    Reid    v.     Morton,     119     111.  Supplements    thereto.    Vol.    2,    p. 

118.  2091;    Vol.    4,    p.    668,    and    cases 

39 — Benfield   v.   Albert,    132    111.  cited    under    section    Oi.     statute; 

665.  Kurd's  R.  S.  of  111.,  1905,  p.  1133. 

40— Section      33,      chapter      64,  41— Lloyd  v.  Malone,  23  111.  43. 

"Guardian  and  Ward."  Starr  &  42— Reid  v.  Morton,  119  111.  118. 
Curtis  Annotated  Statutes  of  Illi- 


LEASING  REAL  ESTATE,  ETC,  663 

by  any  guardian  for  the  sale  of  real  estate  of  his  ward  shall  be 
returned,  on  oath  of  such  guardian,  to  the  county  court  of  the 
county  where  letters  of  guardianship  were  obtained,  and  such 
money  shall  be  accounted  for,  and  subject  to  the  order  of  the 
county  court,  in  like  manner  as  other  moneys  belonging  to  such 
minor.  In  case  of  sale  for  re-investment  in  this  State,  the 
money  shall  be  re-invested  under  the  direction  of  the  court."" 
Where  a  party,  after  arriving  at  age,  settles  with  his  guardian, 
and  receives  moneys  in  the  hands  of  the  guardian  belonging  to 
him,  derived  from  a  sale  of  his  real  estate,  it  will  be  presumed 
that  he  received  the  same  with  a  knowledge  of  the  source  from 
whence  it  came,  and  did  the  act  deliberately.  In  such  case  he 
has  no  rights  to  adjudicate  and  is  estopped.*' 

742.  Non-resident  guardian — powers  to  collect.  Section  44 
of  the  Guardian  and  Ward  Act  provides:  "When  there  is  no 
guardian  in  the  State  of  a  non-resident  minor,  his  guardian  ap- 
pointed and  qualified  according  to  the  law  of  the  place  where 
the  minor  resides,  having  first  obtained  the  authority  of  the 
County  Court  of  the  county  in  this  State  where  any  of  the  per- 
sonal estate  of  such  minor  may  be,  so  to  do,  may  collect,  by  suit 
or  otherwise,  receive  and  remove  to  such  place  of  residence  of 
the  minor,  any  personal  estate  of  such  minor."""  Under  this 
section  of  the  statute,  it  is  not  an  essential  prerequisite  that  a 
foreign  guardian,  who  wishes  to  ascertain  the  amount  of  money 
in  the  hands  of  a  home  guardian  first  obtain  an  order  of  the 

43— Reid  v.  Morton,  119  111.  118.  Curtis  Annotated  Statutes  of  Illi- 

44 — Spellman  v.   Dowse,   79    111.  nois.  Vol.  2,  p.  2092;  Kurd's  R.  S. 

66.'  of  111.,  1905,  p.  1133. 

45— Field    v.    Peoples,    180    111.  49— Corwin    v.    Shoup,    76    111. 

389.  246. 

46 — Conover  v.  Musgrave,  68  111.  50 — Section      44,      chapter      64, 

58;  In  re  Steele,  65  111.  322;  Har-  "Guardian   and    Ward."      Starr   & 

vey  V.  Sweet,  16  111.  127;  FitzgiB-  Curtis  Annotated   Statutes  of  lUi- 

bon  V.  Lake,  29  111.  165.  nois,    with    Jones    &    Addington's 

47 — Ayers    v.    Baumgarten,    15  Supplements    thereto.    Vol.    2,    p. 

III.  444.  2094,  Vol.  4,  p.  669,  and  cases  cited 

48 — ^Section      34,      Chapter     64,  under   section   of   statute;    Hurd's 

"Guardian   and   Ward."     Starr   &  R.  S.  of  111,,  1905,  p.  1134, 


664  THE    LAW    OF   ESTATES. 

county  court  for  such  purpose.  The  foreign  guardian  has  the 
right  without  such  order  to  cause  a  citation  to  issue  against  the 
home  guardian,  requiring  such  to  make  a  settlement  of  his 
guardianship,  as  such  proceeding  is  not  considered  to  be  strictly 
an  action  to  collect  money,  but  merely  a  proceeding  to  require 
the  guardian  to  account  and  determine  the  amount  of  money 
in  his  hands.^^  But  in  order  to  sue  and  collect  money,  the 
foreign  guardian  must  follow  the  requirements  of  the  statute, 
and  first  obtain  an  order  of  the  County  Court  for  that  pur- 
pose.^^ 

743.  Transfer  of  estate  to  non-resident  guardian.  Section 
45.  When  there  is  a  guardian  in  this  State  of  a  non-resident 
minor,  the  court  may  authorize  such  guardian  to  pay  over  and 
transfer  the  whole  or  any  part  of  the  ward's  property  to  the 
non-resident  guardian  of  such  ward,  appointed  and  qualified 
according  to  the  law  of  the  place  where  the  ward  resides,  upon 
such  terms  as  shall  be  proper  in  the  premises,  requiring  receipts 
to  be  passed;  and  when  the  whole  estate  in  the  hands  of  a  resi- 
dent guardian  shall  be  so  transferred,  may  discharge  him.^^ 

744.  Conditions  follow  grant  of  authority  to  non-resident 
guardian.  Section  46.  "But  the  court  shall  not  grant  the 
authority  mentioned  in  sections  44  and  45,  except  upon  petition 
of  such  foreign  guardian,  signed  by  him  and  verified  by  his 
affidavit,  and  unless  he  shall  file  with  the  court  properly  authen- 
ticated copies  of  his  letters  of  guardianship  and  bond,  with 
security  in  double  the  amount  of  the  value  of  the  property  and 
estate  sought,  which  shall  have  been  executed  and  filed  in  the 
court  which  appointed  such  guardian.'  And  unless  it  shall 
appear  to  the  court  that  a  removal  of  such  estate  will  not  con- 
flict with  the  interest  of  the  ward,  or  the  terms  of  limitation 
attending  the  right  by  which  the  ward  owns  the  same,  or  the 

51— McCleary  v.  Menke,  109  111.  53— Section  45,  chapter  64, 
300-301.  "Guardian   and   Ward."     Starr  & 

52 — Campbell  v.  Millar,  84  111.  Curtis  Annotated  Statutes  of  Illi- 
App.  215.  nois.  Vol.  2,  p.  2094;   Kurd's  R.  S. 

of  111.,  1905,  p.  1134. 


LEASING /jREAL  ESTATE,  ETC.  665 

rights  of  creditors; i|:lie  resident  guardian  shall  have  ten  days' 
previous  notice  of  such  application.^* 

745.  Sale  of  real  estate  by  non-resident  guardian.  Section 
47  provides:  "Where  any  person  residing  in  any  other  State 
of  the  United  States,  or  any  Territory  thereof,  shall  have  been 
or  may  hereafter  be  appointed  guardian,  in  the  State  or  Terri- 
tory in  which  such  person  resides,  of  any  infant  or  other  person 
owning  real  estate  within  this  State,  not  having  any  guardian 
in  this  State,  it  shall  and  may  be  lawful  for  every  such  guardian 
to  file  his  or  her  petition  in  the  Circuit  Court  of  the  county  in 
which  said  real  estate,  or  the  major  part  thereof,  may  lie,  for 
sale  of  said  real  estate,  for  the  purpose  of  educating  and  sup- 
porting such  infant  or  other  persons  under  guardianship,  or  for 
the  purpose  of  investing  the  proceeds  of  such  real  estate  in 
such  manner  as  the  court  which  appointed  such  guardian  may 
order  and  direct;  and  the  said  Circuit  Court  is  hereby  fully 
authorized  and  empowered  to  order  a  sale  of  such  real  estate, 
conformably  to  the  prayer  of  said  petition.  Provided,  that 
every  such  guardian  applying  for  such  sale,  shall  file  with  his 
or  her  petition  an  authenticated  copy  of  his  or  her  letters  of 
guardianship.  And,  provided,  further,  that  the  said  court  shall 
make  no  order  for  a  sale  under  said  petition,  until  the  said 
guardian  shall  have  executed  and  filed,  in  the  court  which 
appointed  said  guardian,  a  bond,  with  sufficient  security,  ap- 
proved by  said  last  mentioned  court,  for  the  due  and  faithful 
application  of  the  proceeds  of  every  such  sale,  in  such  manner 
as  the  said  last  mentioned  court  may  direct,  an  authenticated 
copy  of  which  said  bond,  and  the  approval  thereof,  shall  be 
deemed  and  taken  by  the  Circuit  Court  as  sufficient  evidence  of 
the  execution  and  filing  of  the  same. '"^^     The  proceeding  by  a 

54 — Section      46,      chapter      64,  text  see  Ante,  742,  743  and  cita- 

"Guardian   and    Ward."      Starr    &  tions. 

Curtis  Annotated  Statutes  of  Illi-  55 — Section      47,      chapter      64, 

nois,  Vol.  2,  p.  2094;  Kurd's  R.  S.  "Guardian   and   Ward."      Starr   & 

of  111.,   1905,  p.   1134.     As  to  sec-  Curtis  Annotated  Statutes  of  Illi- 

tions   44    and    45,    referred    to    in  nois.  Vol.  2,  p.  2095;   Kurd's  R.  S. 

of  111.,  1905,  p.  1134. 


666  THE    LAW    OF   ESTATES. 

guardian  to  sell  the  real  estate  of  his  ward  are  statutory,  and 
the  requirements  of  the  statute,  the  application  for  the  sale  of 
such  real  estate  shall  be  made  in  the  county  where  the  ward 
resides,  or,  in  case  the  ward  does  not  reside  in  the  State,  in  some 
county  where  the  whole  or  a  part  of  the  real  estate  is  situated, 
is  jurisdictional,  and  any  material  deviation  from  these  require- 
ments, as  to  the  court  in  which  the  proceedings  must  be  had,  is 
fatal  to  the  jurisdiction  of  the  court.  In  the  case  in  question, 
the  wards  at  and  before  the  petition  was  filed  resided  in  the 
State  of  Ohio.  The  lands  in  question  were  in  Cook  county  and 
the  proceedings  had  in  Will  county;  and  no  lands  sought  in 
said  proceedings  to  be  sold  were  in  Will  county  as  a  matter  of 
fact.^« 

746.  Notice — terms  of  sale.  Section  48  of  the  same  act,  pro- 
vides: ''Every  guardian  applying  for  an  order  of  sale  under 
the  foregoing  section  shall  be  required  to  give  notice  of  his  or 
her  petition  in  the  same  manner  as  is  now  required  by  law  in 
cases  of  application  for  sales  of  lands  belonging  to  minors,  by 
resident  guardians;  and  in  every  order  for  the  sale  of  real 
estate  under  this  act,  it  shall  be  the  duty  of  the  court  to  pre- 
scribe the  terms  of  said  sale,  and  the  notice  which  shall  be  given 
thereof,  and  the  place  where  such  sale  shall  be  made.  "^^ 

747.  Deeds — title — bond  for  costs.  Section  49.  ''All  sales 
of  real  estate,  under  the  provisions  of  this  act,  are  hereby 
declared  to  be  good  and  valid;  and  all  deeds  executed  by  such 
guardian  to  the  purchaser  or  purchasers  under  such  sales,  shall 
convey  to  and  vest  in  such  purchaser  or  purchasers  all  the 
estate,  right,  title  and  interest,  in  law  or  equity,  of  said  infant 
or  others  in  and  to  the  land  so  sold.  Section  50."  In  all  suits 
and  petitions  by  non-resident  guardians,  they  shall  give  a  bond 
for  costs,  as  in  cases  of  other  non-residents.^*     Where  the  sale 

56 — Spellman   v.   Dowse,   79   111.  nois.  Vol.  2,  p.  2095;   Kurd's  R.  S. 

69.  of  111.,  1905,  p.  1135. 

57 — Section      48,      chapter      64,  58 — Section      49,      chapter      64, 

"Guardian    and   Ward."      Starr    &  "Guardian    and    Ward."      Starr    & 

Curtis  Annotated  Statutes  of  lUi-  Curtis  Annotated  Statutes  of  Illi- 


LEASING  REAL  ESTATE,  ETC.  667 

of  real  estate  by  a  foreign  guardian  of  an  insane  person  is 
made  through  an  agent,  the  guardian  not  being  present  or 
directing  it,  and  the  guardian  adopts  the  act  of  her  agent,  and 
the  court  approves  the  sale,  there  being  no  exceptions  on  this 
account,  and  the  sale  is  fairly  made  and  for  a  good  price,  it  will 
be  binding  on  the  purchaser,  and  it  is  doubted  whether  the  sale 
ccfuld  be  impeached  in  a  direct  proceeding.  Where  the  court 
ordering  sale  of  real  estate  has  jurisdiction  of  the  subject  matter 
and  of  the  parties,  even  if  the  proceedings  are  irregular  and 
erroneous,  the  purchaser  cannot  avoid  the  sale,  as  the  doctrine 
of  caveat  emptor  applies  in  all  judicial  sales.^^ 

nois,  Vol.  2,  p.  2095;  Kurd's  R.  S.  59— Wing  v.  Dodge,  80  111.  564. 
of  111.,  1905,  p.  1135. 


CHAPTER   XLIII 

GUARDIANS'  SETTLEMENT  AND  ACCOUNl  ING  ON 
FINAL  SETTLEMENT 


Sec. 

748.  Settlements   yearly   and   final 

settlements. 

749.  Powers  of  courts  of  probate 

not  strictly  confined  to  stat- 
ute. Common  law  powers 
still  exist  in  such,  court  and 
apply  to  guardians. 

750.  Under   common   law   account- 

ing was  required  of  all 
guardians. 

751.  Final  settlement. 

752.  The  powers  of  courts  of  chan- 

cery will  be  applied  in  spe- 
cial cases  when  necessary. 

753.  Foreign  guardian  has  right  to 

take  steps  to  collect  money 
due  his  ward. 

754.  Final     settlement,       citation, 

limitation,  liability  of  sure- 
ties. 

755.  Examination  of  guardians'  se- 

curity, additional   security. 


Sec. 

756.  Counter  security. 

757.  Removal    of    guardian,    sum- 

mons to  show  cause,  notice, 
resignation. 

758.  Tendering  written  resignation 

will  not  operate  to  release. 

759.  Effect  of  guardian's  procuring 

a  second  appointment  by 
court  in  another  county. 

County  court  cannot  remove 
guardian  without  citing  him 
to  appear. 

Successor,  delivery  of  prop- 
erty to  such. 

Effect  of  marriage  of  female 
ward. 

Final  settlement ;  unclaimed 
moneys  in  hands  of  guard- 
ians; deposit  of  such  money. 

Compensation. 

Appeals. 


760. 


761. 


762. 


763. 


764 
765 


Sec.  748.  Settlements — final  settlements — accounting  on 
final  settlement.  Section  14  of  the  Guardian  and  Ward  Act  pro- 
vides: "The  guardian  shall,  at  the  expiration  of  a  year  from 
his  appointment,  settle  his  accounts  as  guardian  with  the  County 
Court,  and  at  least  once  every  three  years  thereafter,  and  as  much 
oftener  as  the  court  may  require."  Section  15.  "At  the  expira- 
tion of  his  trust  he  shall  pay  and  deliver  to  those  entitled  thereto 
all  the  money,  estate  and  title  papers  in  his  hands  as  guar- 
dian, or  with  which  he  is  chargeable  as  such."    Section  16.    "On 

668 


GUARDIANS'  SETTLEMENT.  669 

any  accounting  and  final  settlement  of  guardian,  he  shall  exhibit 
and  file  his  account  as  such  guardian  setting  forth  specifically, 
in  separate  items,  on  what  account  expenditures  were  made  by 
him,  and  sums  received  and  paid  out  since  his  last  accounting, 
and  all  moneys  on  hand,  and  an  itemized  account  of  all  notes, 
bonds,  accounts,  and  evidences  of  indebtedness  composing  the 
personal  estate  of  his  ward;  and  such  guardian  shall  produce 
and  exhibit  to  the  court  the  notes,  bonds,  accounts,  and  evidence 
of  indebtedness  so  itemized,  and  held  by  him;  and  it  is  hereby 
made  the  duty  of  the  court  to  inspect  the  assets  so  exhibited. 
Which  account  shall  be  accompanied  by  proper  vouchers  and 
signed  by  him  and  verified  by  his  affidavit. '  '^ 

749.  Powers  of  courts  of  probate  not  strictly  confined  to 
statute — common  law  powers  still  exist  in  such  court  and  apply- 
to  guardians.  The  common  law  powers  of  guardians  still  exist 
in  this  State,  where  such  powers  are  not  inconsistent  with  statu- 
tory enactments.^  In  the  leading  and  elaborate  case.  Bond  v. 
Lockwood,  Mr.  Justice  Beckwith  very  learnedly  discusses  the 
jurisdiction  and  powers  of  courts  of  probate,  and  the  scope  of 
the  statute,  with  conunon  law  powers  of  such  court  and  guard- 
ians. It  is  substantially  stated  in  that  opinion:  The  provisions 
of  the  statute  relating  to  guardians  were  not  designed  as  a 
complete  code,  but  were  enacted  to  confer  upon  the  County 
Court  power  to  appoint  guardians,  and  to  regulate  their  con- 
iduct  in  accordance  with  their  duties  at  common  law.  Some  im- 
perfections in  the  common  law  were  remedied,  and  a  more 
simple  and  convenient  mode  of  procedure  introduced.  While 
some  of  its  provisions  were  declaratory  of  the  common  law, 
many  of  the  powers  and  duties,  rights  and  liabilities  of  guard- 

1 — As  amended  by  act  approved  pp.    2080,    2081,    2082,    and    cases 

June   27,    1885.     In   force   July   1,  cited;    Vol.    4,   p.    668,    and    cases 

1885.     Laws,   1885,     Section   (14),  cited;  Kurd's  R.  S.  of  111.,  1905,  p. 

chapter  64,  "Guardian  and  Ward."  1131. 

Starr  &  Curtis  Annotated  Statutes  2 — Bond    v.    Lockwood,    33    111. 

of  Illinois,  with  Jones  &  Adding-  212;    Schmidt  v.  Shaver,   196   III. 

ton's  Supplements  thereto.  Vol.  2,  115. 


670  THE  liAW  OF  ESTATES. 

ians  are  not  by  the  statute,  specifically  defined.  The  statute 
contains  such  provisions  as  were  necessary  to  define  the  nature 
of  the  jurisdiction  conferred,  prescribe  the  manner  of  its  exer- 
cise, and  correct  some  defects  of  the  law  as  it  then  existed.  In 
other  respects,  the  common  law  regulating  the  powers  and 
duties,  rights  and  liabilities  of  guardians,  was  left  in  force. 
The  power  of  the  County  Court  to  compel  guardians  to  render 
an  account  of  their  guardianship  is  co-extensive  with  that  of  a 
Court  of  Chancery.  In  this  respect  the  statute  has  made  no 
change,  but  has  conferred  upon  Courts  of  Probate  a  summary 
power,  when  necessary  to  exercise,  compelling  guardians  to 
render  accounts  upon  oath,  touching  their  guardianship;  but 
this  power  of  the  court  goes  still  further,  for  it  may  require 
proofs,  examine  witnesses,  and  resort  to  all  manner  of  means 
necessary  to  ascertain  the  truth.  It  is  made  the  duty  of  the 
court  under  the  later  statutes,  to  inspect  the  assets  exhibited 
with  the  account,  or  claimed  to  be  on  hand;  and  of  course 
implied  power  of  inspection  gives  the  court  power  to  ascertain 
the  truth  of  the  value  of  such.*  Its  power  in  that  regard  are 
GO-extensive  with  that  of  a  court  of  chancery.^ 

750.  Under  common  law  accounting  was  required  of  all 
guardians.  Guardians  by  custom  of  the  various  cities  recog- 
nized by  the  common  law,  guardians  by  election,  in  chivalry, 
and  those  appointed  by  ecclesiastical  courts,  chancery  and  other 
courts,  and  testamentary  guardians  were  all  by  the  common 
law  required  to  render  an  account  and  might  be  compelled  to 
do  so.  As  heretofore  stated  the  powers  of  courts  of  probate  to 
compel  guardians  to  render  an  account  of  their  guardianship 
from  time  to  time  are  co-extensive  with  a  court  of  chancery. 
The  accounts  are  to  be  rendered  upon  oath  and  the  court  may 
require  their  settlement.^     The  matter  of  accounting  is  not  an 

3 — 33  111.  212.  6 — See  sections  14  to  16,  chapter 

4 — In  re  Steele,  65  111,  324.  64,   "Guardian     and     Ward."   For 

5 — Bostwick  V.   Skinner,   80  111.  statute    citations    see    Ante,    748; 

147;  People  v.  Seelye,  146  111.  189;  Bond  v.   Lockwood,   33   111.  220. 

People  V.  Medart,  166  111.  351. 


GUARDIANS'   SETTLEMENT.  671 

action  either  at  law  or  equity,  within  the  meaning  of  the 
statute  of  limitations.'^  It  is  a  summary  proceeding  provided 
by  statute.®  So  under  the  common  law  and  the  statute  of  this 
State,  the  court  may  allow  or  disallow  in  whole  or  in  part  an 
account  of  a  guardian,  and  may,  for  that  purpose  examine  wit- 
nesses, may  require  the  production  of  vouchers,  and  do  all  other 
acts  necessary  to  enable  it  to  arrive  at  a  correct  conclusion  as 
to  whether  or  not  the  account  ought  to  be  allowed;  and  when 
allowed  it  is  required  to  be  entered  of  record.  The  allowance 
of  a  guardian's  account  is  a  judicial  act,  and  though  it  is  often 
and  necessarily  during  the  minority  of  the  ward,  ex  parte,  it 
is  presumed  by  law  the  act  was  properly  performed  until  the 
contrary  appears.  It  is  prima  facie  evidence  of  the  correctness 
of  the  account  allowed.^  All  honest  errors  in  accounting  may 
be  explained,  as  such  should  not  be  held  conclusive  upon  the 
guardian.^"  But  where  one  not  regularly  appointed  guardian, 
who  arrogates  to  himself  the  functions  of  such,  is  called  to 
account,  he  will  be  held  to  the  strictest  possible  accounting 
under  the  rules  of  equity.^^  In  such  case  he  will  when  found 
converting  ward's  estate  to  his  own  advantage,  be  charged  with 
compound  interest.^-  Equity  will  not  permit  advantage  to  be 
taken  of  the  ward  on  final  settlement,  even  where  the  account 
and  settlement  is  approved  by  the  court.^^  If  a  guardian  makes 
a  fictitious  account  and  report  to  the  court,  falsely  charging 
himself  with  money  not  in  fact  due  from  him  to  his  ward,  for 

7 — People    V.    Stewart,    29    111.  lews  Appeal,  36  Conn.  186;  Story's 

App.    441;    Gilbert   v.    Guptill,   34  Eq.  Jur.  Sec.  91;  Bispham's  Prin- 

lU.  112;  Doolittle  v.  Bruce,  81  111.  ciples    of   Equity,    p.    189,    section 

103.  183. 

8 — In  re  Steele,  65  111.  322;  Mc-  11 — Davis  v.  Harkness,  1  Gilm. 

Cleary  v.  Menke,  109  111.  294;  Gil-  (111.)    173. 

lette  V.  Wiley,  126  111.  310;   Ghee-  12— Rowan    v.    Kirkpatrick,    14 

ney  v.  Roodhouse,  32  111.  App.  49;  111.  1. 

Harvey  v.  Harvey,  87  111.  54.  13 — Lehman    v.    Rothbarth,    111 

9— Bond    V.    Lockwood,    33    111.  111.    200;    Carter   v.   Tice,    120   111. 

220.  277;  Gillette  v.  Wiley,  126  111.  126; 

10— Zw    re    Steele,    65    111.    326;  Bruce    v.    Doolittle,    81    111.    103; 

Dixon  V.  Buell,  21  111.  203;   Bran-  Bennett  v.   Hanifin,  87  111.   31. 
don   v.  Brown,   106   111.   525;    Sel- 


672  THE  LAW  OF  ESTATES. 

the  fraudulent  purpose  of  making  his  surety  liable,  a  court  of 
equity  will  interfere  at  the  suit  of  the  surety  to  correct  such 
reports,  and  make  them  conform  to  the  truth  as  to  the  amount 
of  money  in  fact  owing  by  the  principal.^* 

751.  Final  settlement.  All  questions,  in  the  absence  of 
fraud,  relating  to  a  claim  of  a  guardian  against  his  ward,  on 
final  settlement  in  a  court  of  probate,  are  necessarily  involved 
in  the  inquiry,  or  settlement  within  the  jurisdiction  of  the 
court ;  and  when  such  adjudication  and  settlement  of  account  is 
final  it  is  binding  upon  the  ward  and  all  parties  interested, 
except  such  matters  as  are  not  necessarily  involved  in  the 
determination.  A  judgment  is  conclusive  upon  the  parties  to 
it  only  in  respect  to  the  grounds  covered  by  it,  and  the  law 
and  the  facts  necessary  to  uphold  it.^^  The  Illinois  cases  fol- 
low the  doctrine  of  the  English  cases  on  this  subject.^®  And 
where  the  accounting  is  not  made  in  accordance  with  the  statu- 
tory provisions,  it  is  not  an  adjudication  binding  upon  the 
ward.^*  From  the  confidential  relation  between  a  guardian 
and  his  ward,  it  will  be  presumed  that  the  ward  acts  under 
the  influence  of  the  guardian,  and  all  transactions  and  dealings 
between  them,  prejudicially  affecting  the  interests  of  the  ward, 
will  be  held  to  be  constructively  fraudulent.  And  this  presump- 
tion continues  even  after  the  guardianship  has  ended,  when  the 
matters  between  the  guardian  and  ward  have  not  yet  been  fully 
settled;  and  transactions  between  them  during  the  presumed 
influence,  which  are  injurious  to  the  interests  of  the  ward,  will 
be  set  aside,  unless  shown  to  have  been  the  deliberate  act  of  the 
ward,  after  full  knowledge  of  his  rights.  In  all  such  cases, 
the  burden  rests  upon  the  guardian  to  prove  the  circumstances 

14_Fogarty    v.    Ream,    100    111.  111.   338;    Miller  v.   McMannus,  57 

375,    and    cases    cited,    extending  111.    128;    Williams   v.   Walker,   62 

the  rule  by  analogy  to  conserva-  111.  518;  Jessup  v.  Jessup,  102  111. 

tors.     See  also  Slags  v.  People,  21  480;    Smith    v.    Wilmington    Coal 

111.  App.  283.  Co.,  83  111.  498. 

15— Bigelow  on  Estoppel,  p.  22.  17— Hazelrigg  v.  Parsley,  69  III 

16— Gray    v.    Gillilian,     15     111.  App.  470;   Schmidt  v.  Shaver,  196 

453;  McCloskey  v.  McCormick,  44  111.  108. 


GUARDIANS'  SETTLEMENT.  673 

of  knowledge  and  free  consent  on  the  part  of  the  ward,  good 
faith  and  absence  of  influence  alone  can  overcome  this  presump- 
tion.^^ And  this  doctrine  was  extended  to  the  following  case, 
where  the  final  report  was  approved  by  the  County  Court,  a 
receipt  for  the  balance  due  the  ward  was  filed,  and  the  guardian 
discharged,  but  no  money  was  paid  the  ward.  This  being  done 
in  the  absence  of  the  ward,  and  without  notice  to  her,  and 
when  no  one  represented  her  interests.  A  bill  was  filed  in 
equity,  and  the  whole  proceeding  set  aside,  the  sureties  having 
been  parties  to  the  procuring  of  the  receipt,  were  with  the 
principal  held  liable  to  the  ward,  as  they  were  not  protected  by 
the  settlement  and  discharge  of  the  guardian.^**  And  again, 
where  settlement  and  reports  were  approved  by  the  Probate 
Court,  in  a  case  where  a  husband  of  a  guardian  makes  out 
reports  in  his  wife's  name,  and  assumes  exclusive  agency  of 
the  trust  funds  and  securities  of  the  wards,  under  a  settlement 
pressed  after  they  became  of  age.  In  proceedings  in  chancery, 
the  husband  was  held  to  account  as  a  trustee  and  was  not  per- 
mitted to  take  advantage  of  the  final  settlement  approved  by 
the  court.-** 

752.  Foreign  guardian  has  right  to  take  steps  to  collect 
money  due  his  ward.  A  foreign  curator  or  guardian  of  an 
infant  may  cause  a  citation  to  issue  against  a  guardian  ap- 
pointed in  this  State,  and  require  him  to  make  a  settlement  of 
his  guardianship,  and  thereby  ascertain  the  money  in  his  hands 
belonging  to  the  ward,  without  first  obtaining  an  order  of  court 
allowing  such  foreign  curator  to  sue  for  or  collect  the  same, 
that  proceeding  not  being  strictly  an  action  to  collect  the 
money.  It  is  sufficient  if  he  obtains  such  order  before  he  seeks 
to  collect  the  money." ^  And  in  equity,  under  the  general  pow- 
ers of  such  court  over  the  estates  of  infants  and  others  under 
disability,  may  procure  an  order  for  the  sale  of  an  infant's 

18— Gillette    v.    Wiley,    126    111.  111.  200;  Harvey  v.  Harvey,  87  III. 

310.  54 ;  Cunningham  v.  111.  Cent.  R.  R. 

19— Carter  v.  Tice,   120  111.   277.  Co.,  77  111.  178. 

20— Lehman    v.    Rothbarth,    111  21— McCleary  v.  Menke,  109  HI. 


43 


294. 


674  THE  LAW  OF  ESTATES. 

unproductive  property  in  which  such  has  a  reversionary  inter- 
est in  fee,  in  the  land  sought  to  be  sold,  though  the  latter  be 
situate  in  another  State  and  where  the  bill  seeking  such  relief 
shows  that  such  a  course  is  for  the  best  interests  of  the  infant.  ^^ 
In  such  case  the  land  may  be  sold  or  mortgaged,  where  it 
appears  proper  for  the  support  of  the  infant.^^ 

753.  The  powers  of  courts  of  chancery  will  be  applied  in  spe- 
cial cases  when  necessary.  Where  a  testator  by  his  will,  in- 
vokes the  equitable  jurisdiction  of  the  court  in  relation  to  a 
trust  fund,  and  such  fund  is  reduced  to  possession  by  the  trus- 
tee, under  the  direction  of  the  court,  this  will  also  confer,  inci- 
dentally, jurisdiction  to  construe  the  will  creating  the  trust.^* 
Where  a  testator  devises  funds  to  a  trustee,  in  trust,  to  be 
loaned,  and  the  income  to  be  applied  to  a  child's  support  dur- 
ing its  life,  and  at  its  death  the  same  be  paid  over  to  the  other 
children  of  the  testator,  if  there  is  a  clear  intention,  to  be 
gathered  from  the  whole  will,  that  such  child  is  to  have  a  main- 
tenance, the  court  may  order  the  trustee  to  make  use  of  the 
principal  when  the  income  is  insufficient,  notwithstanding  the 
limitation  over.  The  trustee  on  his  own  authority,  cannot 
break  in  upon  the  capital  of  the  trust  fund  for  maintenance — 
and  this  rule  is  for  the  benefit  of  the  infant.  That  the  court, 
in  a  proper  case,  possesses  such  power,  is  clearly  shown  by  the 
authorities.^^  The  husband  of  a  guardian  who  takes  the  estate 
of  the  ward  in  his  o\vn  management  and  control  may  be  treated 
as  a  guardian  de  son  tort  in  a  court  of  equity.^^  And  where 
exigencies  arise,  not  contemplated  by  party  creating  a  trust,  or 
a  necessity  absolutely  arises  to  grant  reliefj  it  will  be  found  a 


22— Allman  v.   Taylor,   101   111.  352;   Longworth  v.  Riggs,  123  111. 

185.  263. 

23 — Allman    v.    Taylor,   101    111.  25 — Perry   on  Trusts,   sees.   616, 

185-186.  618,   and   cases  cited   in  notes  by 

24 — Bailey  v.   Briggs,   56   N.   Y.  the  author;    Longworth  v.   Riggs, 

407;    Strubher   v.    Belsey,    79    111.  123   111.   263. 

307;    Whitman   v.    Fisher,    74    111.  26 — Lehman   v.    Rothbarth,    111 

147;     Pomeroy's     Eq.     Sees.     351,  111.  186. 


GUARDIANS'   SETTLEMENT.  675 

court  of  chancery  is  vested  with  power  to  relieve.^'  And  such 
power  was  used,  where  the  court  considered  it  proper,  to  meet 
the  exigencies  or  the  absolute  necessity  of  the  case  considered 
as  indicated  by  authorities  cited. 

754.  Final  settlement — citation — limitation — liability  of  sure- 
ties. As  long  as  the  guardian 's  bond  is  in  force,  the  statute  will 
not  bar  an  accounting.  If  the  party  desires  to  set  up  the  bar 
of  the  Statute  of  Limitations  as  a  defense,  he  must  plead  the 
same.-^  Equity  follows  the  law  as  to  period  of  limitation; 
a  bill  filed  to  set  aside  guardian's  bond  must  be  filed  within  the 
period  for  action  on  bond.-*^  A  proceeding  by  citation  to  re- 
quire a  guardian  to  account,  is  not  considered  an  action  at  law 
or  in  equity,  within  the  meaning  of  the  Statute  of  Limitations.-'^ 
It  is  a  summary  proceeding  to  determine  the  amount  of  money 
in  the  hands  of  the  guardian  due  the  ward,  and  requires  an 
accounting.^ ^  A  failure  to  make  final  settlement  and  payment, 
is  a  breach  of  the  guardian's  bond,  upon  which  a  cause  of 
action  at  once  arises  against  the  sureties  under  the  statute."^ 
In  the  absence  of  fraud,  the  sureties  are  bound  by  guardian's 
settlement  and  final  accounting.^^  There  should  be  no  tempta- 
tion or  even  suspicion  of  temptation  for  the  guardian  to  abuse 
the  trust.2* 

755.  Examination  of  guardian's  security — additional  securi- 
ty. Section  35  of  the  guardian  and  ward  act,  provides:  "It 
shall  be  the  duty  of  the  County  Court,  at  each  accounting  of 

27— Rhoads    v.    Rhoads.    43    111.  lette  v.  Wiley,  126  111.  310;   Chee- 

230;  Voris  v.  Sloan,  68  111.  588;  ney  v.  Roodhouse,  32  111.  App.  49. 
Longworth  v.  Riggs,  123  111.   264.         32— People    v.    Brooks,    22    111. 

28 — Bruce    V.    Doolittle,    81    111.  App.  594;  and  cases  cited;  Gillett 

104.  V.  Guptill,  34  111.  112. 

29— Gillette    v.    Wiley,    126    111.         33— Ream  v.  Lynch,  7  111.  App. 

310;  People  v.  Stewart,  29  111.  162;  Gillett  v.  Wiley,  126  111.  310. 
App.  441.  34 — 1    Cooley's    Blackstone,    2d 

30— Gilbert    v.    Guptill,    34    111.  ed.,  461;   Barnsback  v.  Dewey,  13 

112;  Bruce  V.  Doolittle,  81  111.  104.  111.    App.    584;    Cheeney    v.    Rood- 

31— In    re    Steele,    65    111.    322;  house,  32  111.  App.  49;  Lehman  v. 

Cleary  v.  Menke,  109  111.  294;  Gil-  Rotbbarth,  111  111.  185. 


676  THE  LAW  OF  ESTATES. 

the  guardian,  to  inquire  into  the  sufficiency  of  his  sureties.  And 
if,  at  any  time,  it  has  cause  to  believe  that  the  sureties  of  a 
guardian  are  insufiicient  or  in  failing  circumstances,  it  shall, 
after  summoning  the  guardian,  if  he  be  not  before  the  court, 
require  him  to  give  additional  security,  "^° 

756,  Counter  security.  Section  36  of  the  same  act,  provides : 
"Upon  the  application  of  the  surety  of  any  guardian,  and  after 
siunmoning  the  guardian,  the  court  may,  if  it  believes  him  to  be 
insolvent  or  in  doubtful  circumstances,  require  him  to  give 
counter  security  to  his  sureties."^® 

757.  Removal  of  guardian — summons  to  show  cause — ^notice 
— resignation.  Section  37,  "The  county  court  may  remove  a 
guardian  for  his  failure  to  give  bond  or  security,  or  additional 
or  counter  security,  when  required,  or  for  failure  to  make 
inventory,  or  to  account  and  make  settlement,  or  support  or 
educate  the  ward,  or  when  he  shall  have  become  insane,  or  have 
removed  out  of  the  State,  or  become  incapable  or  unsuitable  for 
the  discharge  of  his  duties,  or  for  failure  to  discharge  any  duty 
required  of  him  by  law  or  the  order  of  court,  or  for  other  good 
cause. "^^  Section  38.  "Before  removing  a  guardian  the  court 
shall  summon  him  to  show  cause  why  he  should  not  be  removed 
for  the  cause  alleged.  If  the  guardian  has  left  the  State,  or 
cannot  be  served  with  process,  he  may  be  notified  in  the  same 
manner  as  non-resident  defendants  in  chancery,  "^^  Section 
39.  "When  it  appears  proper,  the  court  may  permit  the  guar- 
dian to  resign  his  trust,  if  he  first  settles  his  accounts  and  de- 
livers over  the  estate  as  by  the  court  directed, '  '^^    Guardians,  at 

35 — Section      35,      chapter      64,  37 — Section      37,      chapter      64, 

"Guardian   and    Ward."      Starr   &  "Guardian  and  Ward." 

Curtis  Annotated  Statutes  of  lUi-  38— Section      38,      chapter      64, 

nois,  Vol.  2,  p.  2092;  Kurd's  R.  S.  "Guardian  and  Ward." 

of  111.,  1905,  p.  1133.  39— Section      39,      chapter      64, 

36 — Section  36,  chapter  64,  "Guardian  and  Ward."  Statute 
"Guardian  and  Ward."  Starr  &  citations  notes  37,  38,  39.  Starr  & 
Curtis  Annotated  Statutes  of  Illi-  Curtis  Annotated  Statutes  of  Illi- 
nois, Vol.  2.  p.  2092;  Kurd's  R.  S.  nois  Vol.  2  pp.  2092.  2093,  and 
of  111.,  1905,  p.  1133.  cases  cited;    Kurd's   R.   S.  of  111., 

1905.  p.   1133. 


GUARDIANS'  SETTLEMENT.  677 

common  law,  were  treated  as  trustees,  and  as  such  were  held  re- 
sponsible for  the  faithful  discharge  of  the  duties  imposed  upon 
them.  The  aid  of  the  courts  of  chancery  has  always  been  in- 
voked to  compel  the  execution  of  trusts  and  the  protection  of 
infants.  In  this  respect  the  statute  has  made  no  change,  but  has 
given  to  the  County  Court  power  and  jurisdiction  somewhat 
summary  in  its  nature  over  guardians.^"  It  is  held  this  action 
being  in  its  nature  equitable  and  the  parties  not  being  entitled 
to  a  jury,  it  was  not  necessary  that  propositions  to  be  held  as 
law  in  the  decision  of  the  case  should  be  submitted  to  the  Cir- 
cuit Court  in  order  to  present  the  question  whether  or  not  its 
action  was  warranted  by  the  law  of  the  case.*^  It  is  also  said, 
in  Wackerle  v.  People,*-  "he  now  insists  that  the  tender  of  his 
resignation  as  such  guardian,  and  the  appointment  which  he 
obtained  from  the  Morgan  County  Court,  ousted  the  jurisdic- 
tion of  the  County  Court  of  Scott  county.  No  resignation 
was  allowable  at  common  law  except  for  strong  reasons  show- 
ing that  the  best  interests  of  the  ward  demanded  it."*^  Prior 
to  the  passage  of  the  statute  on  the  subject,  a  guardian  could 
not  in  this  State,  as  a  matter  of  right,  resign  his  trust.** 

758.  Tendering  written  resignation  will  not  operate  to  re- 
lease guardian.  Under  section  39  of  the  guardian  and  ward 
act,^^  the  resignation  of  the  office  of  guardian  is  not  an  abso- 
lute right,  but  subject  to  a  determination  of  its  propriety  by 
the  court.  Nor  can  it  be  said  that  the  mere  tender  of  a  written 
resignation  to  the  court  is  the  proper  manner  to  bring  the  mat- 
ter before  the  court.  The  guardian  ought  to  present  his  peti- 
tion to  the  court  for  permission  to  resign  his  trust,  containing 
some  showing  by  which  the  court  can  see  that  it  would  be 
proper,  accompanied  by  a  report  of  the  state  of  his  account 

40— Jn  re  Steele,  65  111.  322;  43— Schouler  on  Domestic  Re- 
Wackerle  v.    People,   168   111.   253.     lations,   3rd   ed.,   sec.    315;    Wack- 

41— Wackerle  v.  People,  168  111.    erle  v.  People,  168  111.  253. 
253.  44— Young  v.  Lorain,  11  111.  624. 

42—168  111.  254.  45— As  to  statute  at  large,  see 

Ante,  757. 


678  THE  LAW  OF  ESTATES. 

as  guardian,  and  offering  to  settle  the  same  and  deliver  over 
the  estate  as  the  court  may  direct.  It  is  held,  the  County  Court 
properly  treated  appellant's  attempted  resignation  as  mere 
waste  paper,  and  did  not  lose  jurisdiction  over  the  appellant 
thereby.*^ 

759.  Effect  of  guardian  procuring  a  second  appointment  by 
court  in  another  county.  A  guardian  regularly  appointed  in 
one  county  by  a  court  having  jurisdiction  of  the  subject  mat- 
ter and  the  persons  of  the  guardian  and  his  wards,  cannot  di- 
vest that  court  of  jurisdiction  by  tendering  his  written  resigna- 
tion and  procuring  his  reappointment  by  the  County  Court  of 
another  county.*" 

760.  County  court  cannot  remove  guardian  without  citing 
him  to  appear.  Appointment  of  guardian  may  be  vacated 
ab  initio,  where  the  rights  of  third  persons  are  not  affected  by 
such  resignation.*^  But  revocation  of  letters  by  the  court  on 
such  resignation  is  valid  as  a  cause  for  removal,  and  cannot 
be  collaterally  reviewed.*^  A  County  Court,  however,  has  no 
power  to  remove  a  guardian  without  first  summoning  him  to 
appear  and  show  cause  why  he  should  not  be  removed  for  the 
reasons  alleged  in  the  petition  required  by  the  statute;  and 
this  is  so  even  though  the  guardian  has  failed  to  comply  with 
an  order  of  the  court  requiring  him  to  give  a  new  and  sufficient 
bond.=^'> 

761.  Successor — delivery  of  property  to  such.  Section  40 
of  the  Guardian  and  Ward  Act,  provides:  "Upon  the  re- 
moval, resignation  or  death  of  a  guardian,  another  may  be  ap- 

46— Wackerle  v.  People,  168  111.  ute  at  large,  see  Ante,  757;   Mun- 

page  254.  roe  v.  People,  102  111.  406;   Hani- 

47— Pease    v.    Roberts,    16    111.  fin  v.  Needles,  108  111.  411;  Wack- 

App.  634;  Wackerle  v.  People,  168  erley  v.   People,   168    111.    p.    255. 

111.  255.  The  two  former  cases  cited  in  the 

48 — Pease    v.    Roberts,    16     111.  Wackerle    case,    extend    the    doc- 

App.  634.  trine  of  the  text  to  Executors  and 

49— Young  V.  Lorain,  11  111.  624.  Administrators,  and  by  analogy  to 

50— Section  38,  chapter  64,  that  of  guardians.  See  Ante,  757. 
"Guardian  and  Ward."      For  stat- 


GUARDIANS'  SETTLEMENT.  679 

pointed,  who  shall  giv  bond  and  security  and  perform  the 
duties  prescribed  in  this  act.  And  the  court  shall  have  power 
to  compel  the  guardian  so  removed  or  resigned,  or  the  executor 
or  administrator  of  a  deceased  guardian,  or  the  conservator 
of  an  insane  person,  or  other  person,  to  deliver  up  to  such  suc- 
cessor all  the  goods,  chattels,  moneys,  title  papers,  and  other 
effects  in  his  custody  or  control,  belonging  to  such  minor,  and 
upon  failure  to  so  deliver  the  same,  to  commit  the  person  of- 
fending to  jail,  until  he  shall  comply  with  the  order  of  the 
court.^^  An  order  of  a  Probate  Court,  directing  a  guardian 
to  pay  over  to  his  successor  a  certain  sum  of  money  in  his 
hands,  belonging  to  the  ward,  is  conclusive  upon  the  guardian 
and  on  his  sureties,  unless  the  order  can  be  impeached  for  fraud 
or  collusion.''-  And  the  successor  suing  on  the  former  guar- 
dian's bond  must  allege  in  the  pleadings  his  own  appointment.^^ 

762.  Effect  of  marriage  of  female  ward.  Section  41.  "The 
marriage  of  a  female  ward  shall  discharge  her  guardian  from  all 
right  to  her  custody  and  education,  but  not  to  her  property."'* 

763.  Final  settlement — unclaimed  moneys  in  hands  of  guard- 
ians— deposit  of  such  money.  "That  when  any  guardian  shall 
have  made  final  settlement  with  the  County  Court  it  shall  be  the 
duty  of  the  court  to  order  such  guardian  to  deposit  with  the 
county  treasurer  such  moneys  as  he  may  have  belonging  to  any 
ward  whose  whereabouts  may  be  unknown,  or  belonging  to  the 
unknown  heir  or  heirs  of  any  deceased  ward,  or  the  heirs  of  any 
ward  whose  whereabouts  may  be  unknown,  and  to  take  the  re- 
ceipt of  such  treasurer  therefor,  and  to  file  such  receipt  in  the 
office  of  the  clerk  of  the  County  Court  where  such  settlement  has 
been  made. '  '^^ 

51 — Section      40,      chapter      64,  53 — People  v.  Steele,  7  111.  App. 

"Guardian    and    Ward."     Starr    &  20. 

Curtis  Annotated  Statutes  of  Illi-  54 — Section      41,      chapter      64, 

nois.   Vol.    2,   p.    2093,    and    cases  "Guardian    and    Ward."      Starr   & 

cited;    Kurd's  R.   S.   of  111.,   1905,  Curtis  Annotated   Statutes  of  Illi- 

p.  1133.  nois,  Vol.  2,  p.  2093;  Kurd's  R.  S. 

52— Ammons  v.  People,  11  ITl.  7;  of  111.,  1905,  p.  1134. 
Ralston    v.    Wood,     15     111.     159;  55 — Paragraph   51,  sec.   1,  chap- 
Ream  V.  Lynch,  7  111.  App.  161.  ter  64,  "Guardian  and  Ward." 


680  THE  LAW  OF  ESTATES. 

"When  money  shall  be  deposited  as  aforesaid,  the  person  or 
persons  entitled  to  the  same  may  at  any  time  apply  to  the  court 
making  such  order,  and  obtain  the  same  upon  making  satisfac- 
tory proof  to  the  court  of  his,  her  or  their  right  thereto. '  '^^ 

764.  Compensation.  "Guardians,  on  settlement,  shall  be 
allowed  such  fees  and  compensation  for  their  services  as  shall 
seem  reasonable  and  just  to  the  court.""  In  re  Steele,  the  court 
say:  "There  was  no  error  in  the  refusal  to  allow  the  claims  of 
the  guardians  against  the  estate  of  the  deceased.  They  were 
all  barred  by  the  statute  of  limitations  and  by  laches.  Letters 
of  administration  were  granted  to  one  of  them  in  1856.  They 
were  appointed  guardians  in  1855,  during  a  prior  administra- 
tion. The  citation  was  not  issued  until  1868.  This  long  time, 
without  any  attempt  at  a  settlement  of  the  estate,  or  the  pre- 
sentation of  claims  in  any  of  the  modes  provided  by  statute, 
must  be  regarded  as  a  bar  to  all  debts,  and  we  must  presume 
an  adjustment  of  all  rights,  except  those  of  the  infants.  The 
alleged  error  in  refusing  compensation  for  the  care  and  atten- 
tion to,  and  the  board  and  clothing  of,  the  infants,  does  not 
exist.  There  was  a  contrariety  of  evidence  as  to  the  services  of 
the  children,  and  their  expenses,  and  we  ought  not  to  disturb 
the  finding  of  the  court.  "^* 

765.  Appeals.  Section  43.  "Appeals  shall  be  allowed  to  the 
Circuit  Court  from  any  order  or  judgment  made  or  rendered 
under  this  act,  upon  the  appellant  giving  such  bond  and  se- 
curity as  shall  be  directed  by  the  court ;  but  no  appeal  from  an 
order  removing  a  guardian  shall,  in  anywise,  ajBfect  such  or- 
der, until  the  same  be  reversed.^^     On  appeal  which  lies  from 

56— Paragraph  52,  sec.   2,  chap-  57— Section      42,      chapter      64, 

ter  64,  "Guardian  and  Ward."  An  "Guardian    and    Ward."      Starr   & 

act   approved    May    10,    1889.      In  Curtis  Annotated  Statutes  of  Illi- 

force  July  1,  1889.     Laws  1889,  p.  nois,  Vol.  2,  p.  2096;  Kurd's  R.  S. 

166.      Starr    &    Curtis    Annotated  of  111.  1905,  p.  1134. 

Statutes    of    Illinois,    Vol.    2,    p.  58— 7n  re  Steele,  65  111.  327. 

2096;  Kurd's  R.  S.  of  111.,  1905,  p.  59— Section      43,      chapter      64, 

1135.  "Guardian    and    Ward."      Starr   & 


GUARDIANS'  SETTLEMENT.  681 

order  approving  final  account  and  settlement  of  guardian,  the 
court  must  give  direction  for  bond  and  security ;  and  such  bond 
must  be  filed  and  appeal  taken  during  the  proper  term  of  the 
court. '^•^  And  an  appeal  from  an  order  requiring  guardian  to 
pay  to  his  ward  who  has  reached  majority  a  sum  of  money 
found  due  by  the  court  on  final  settlement,  is  tried  de  novo  in 
the  Circuit  Court.®^  The  trial  in  the  Circuit  Court  is  generally 
de  novo;  the  remedy  is  by  appeal  and  not  by  writ  of  error.*^ 

Curtis  Annotated   Statutes  of  Illi-  60 — McFarland  v.  McFarland,  4 

nois,    with    Jones    &    Addington's  111.  App.  157. 

Supplements    thereto,    Vol.    2,    p.  61 — Hazelrigg  v.  Pursley,  69  111. 

2093;    Vol.    4,    p.    669,    and    cases  App.  469. 

cited   under  section   of  statute  in  62 — Kingsbury    v.    Sperry,    119 

question   in  each   volume;    Kurd's  111.   283;    Ennis  v.  Ennis,  103   111. 

R.  S.  of  111.,  1905,  p.  1134.  95;   Condon  v.  Churchman,  32  111. 

App.  317. 


CHAPTER   XLIV 


IDIOTS,  LUNATICS,  DRUNKARDS  AND  SPENDTHRIFTS 


Sec. 

766.  Grcneral  and  introductory  re- 

marks. 

767.  Proceedings      to      determine 

questions  of  sanity. 

768.  Summons,     service,     hearing, 

jury    continuance,     appoint- 
ment of  conservator. 

769.  Bond     of    conservator,     addi- 

tional bond,  counter  securi- 
ty. 

770.  Summons  and  notice  must  be 

served. 

771.  When  a  court  of  equity  will 

adjudicate  as  to  insanity. 

772.  The  bond  must  comply  with 

the  statute. 


Sec. 

773.  Care  of  estate,  custody  of  per- 

son, children. 

774.  Inventory,  form  of  same. 

775.  Settlements,   final  manner  of 

accounting,  power  to  adjust 
claims. 

776.  Performance  of  contracts,  le- 

gal proceedings,  appearance 
by  conservator. 

777.  Contracts,    when    and    as    to 

whom  void. 

778.  One  knowingly   dealing   with 

insane     person     is     deemed 
guilty  of  fraud. 

779.  What   contracts   voidable. 

780.  Swindling  an  idiot  or  lunatic. 

781.  Management  of  estate. 


Sec.  766.  General  remarks.  Conservators  in  the  strict  sense 
of  the  word  are  guardians  of  the  person  and  property  of  the 
idiot,  insane  or  distracted  person,  the  drunkard  and  spend- 
thrift. Such  persons  under  disability  are  governed  practically 
by  statute  law  of  the  State  of  Illinois,  similar  to  that  relating 
to  guardian  and  ward;  and  in  many  respects  the  duties  of  the 
conservator  and  the  guardian  of  minors  are  similar;  for  the 
statutory  enactments  applicable  to  both  are  almost  identical. 
Of  necessity,  when  such  statute  law  is  construed,  it  applies  in 
principle  to  both  the  conservator  of  the  insane  and  the  guar- 
dian of  minors.  When  a  conservator  is  properly  appointed 
by  a  court  of  competent  jurisdiction  and  under  such  appoint- 
ment qualifies,  he  is  vested  with  power  to  care  for  the  estate 
of  the  idiot,  insane  or  distracted  person,  drunkard  and  spend- 

682 


idiot's,  lunatics,  drunkards,  etc.  683 

thrift;  and  if  required  by  the  court  has  in  some  respect  cus- 
tody of  the  person  of  such.  In  Illinois,  a  conservator  has 
merely  the  care  and  management  of  his  insane  ward's  estate, 
without  title  thereto;  and  any  action  therefor  affecting  the  title 
to  such  real  estate  must  be  brought  against  the  ward;  the  judg- 
ment must  be  against  him,  and  not  against  the  conservator.' 
The  statute,  relating  to  such  provides:  "The  conservator  shall 
manage  the  estate  of  his  ward  frugally  and  without  waste,  and 
apply  the  income  and  profits  thereof,  so  far  as  the  same  may  be 
necessary,  to  the  comfort  and  suitable  support  of  his  ward  and 
his  family,  and  the  education  of  his  children."^  Section  5  of 
the  same  act  provides:  "Such  conservator  shall  have  the 
care  and  management  of  the  real  and  personal  estate  of  his 
ward,  and  the  custody  of  his  person,  unless  otherwise  ordered 
by  the  court;  and  the  custody  and  education  of  his  children 
where  no  other  guardian  is  appointed,  unless  the  court 
orders  otherwise."^  For  the  detention  of  the  lunatic  no  appeal 
lies,  but  the  law  allows  him  a  remedy  by  the  writ  of  habeas 
corpus.*  Under  the  early  statutes  of  this  State,  provision  only 
was  made  for  the  care  and  custody  of  the  estates  of  insane  per- 
sons; and  while  the  early  statute  provided  for  the  commitment 
and  detention  of  the  insane  pauper,  the  commitment  of  insane 
not  classed  as  paupers  was  not  provided  for.^  Paupers  whether 
idiots,  or  otherwise,  became  public  charges  of  the  overseer  of 
the  toAvnship  or  the  county  authorities.  Such  could  be  detained 
and  committed,  where  there  were  no  relations  specified  by 
statute,  that  might  be  made  to  contribute  in  whole  or  in  part 
to  the  support  of  such.® 

1— Scott  V.  Bassett,  194  111.  602.  3— Section  5,  chapter  86,  "Luna- 

2 — Section       17,      chapter      86,  tics,  etc."   For  statute  at  large  see 

"Lunatics,    etc."      Starr    &   Curtis  Post,  773,  and  citations  as  to  Starr 

Annotated     Statutes     of    Illinois,  &  Curtis,  and  Hurd. 

with  Jones  &  Addington's  Supple-  4 — People  v.  Gilbert,  115  111.  60. 

ments    thereto.    Vol.    2,    p.    2667;  5 — ^Revised  Statutes,  1845,  chap- 

Vol.  4,  p.  817,  and  cases  cited  un-  ter  50.    City  of  Alton  v.  County  of 

der    section    of    statute    in    eacll  Madison,  21  III.  115-116. 

volume;      Kurd's     R.    S.   of     111.,  6 — See    Session    Laws,    1837,    p. 

1905,  p.  1347.     See  also  post,  781.  21:    Statutes  of  1845,  chapter  50; 


684  THE  LAW  OF  ESTATES. 

767.  Proceedings  to  determine  question  of  sanity,  etc.  Sec- 
tion 1.  "Lunatics,  idiots^  drunkards  and  spendthrifts,"  pro- 
vides: "When  any  person  having  any  estate,  real  or  personal, 
shall  be,  or  be  supposed  to  be,  an  idiot  or  an  insane,  distracted 
or  feeble  minded  person,  who,  by  reason  of  unsoundness  of 
mind,  is  incapable  of  managing  or  caring  for  his  own  estate, 
or  when  any  person  having  any  estate  shall  be,  or  be  supposed 
to  be  a  drunkard  or  spendthrift  who  is  alleged  so  to  spend, 
waste  or  lessen  his  estate  as  to  expose  himself  or  his  family  to 
want  or  suffering,  or  any  county,  town  or  incorporated  city, 
or  village  to  any  charge  or  expense  for  the  support  of  himself 
or  his  family,  the  County  Court  of  the  county  wherein  such 
person  resides,  shall,  on  the  proper  application  of  any  reputable 
citizen  of  such  county,  proceed  in  the  manner  hereinafter  pro- 
vided, to  ascertain  whether  such  person  be  an  idiot  or  an  insane, 
distracted  or  feeble  minded  person,  who,  by  reason  of  unsound- 
ness of  mind,  is  incapable  of  managing  and  caring  for  his  own 
estate,  a  drunkard  or  spendthrift  as  aforesaid.  Provided,  that 
in  any  county  wherein  a  Probate  Court  is  or  hereafter  may  be 
established,  such  application  shall  be  made  to  said  Probate 
Court  "^ 

768.  Summons,  service,  hearing,  jury,  continuance — appoint- 
ment of  conservator.  Section  2  of  the  same  chapter,  as  amended 
in  1903  is  as  follows:  "On  any  application  for  the  appoint- 
ment of  a  conservator  of  any  person  being  filed,  the  court  shall 
set  aside  cause  for  hearing,  summons  shall  be  issued  returnable 

Laws   of  1853,   p.   262;    an  act  to  Curtis  Annotated  Statutes  of  Illi- 

amend  chapter  50  of  the  Revised  nois,  Vol.  2,  p.  2657;  Kurd's  R.  S. 

Statutes,      entitled      "Idiots      and  of    111.,    1905,    same    section    and 

Lunatics"  and  extending  the  pro-  chapter,  p.  1342. 
visions  thereof  to  habitual  drunk-         7 — Section     1,     chapter     86,     as 

ards.     Passed  and  in  force,  April  amended    by    law    of    1903,    page 

19,   1869;    Smith   v.   Bartholomew,  247;  passed  May  16,  1903.    In  force 

65   111.   375.     See  also   section   24,  July  1,  1903.     Starr  &  Curtis  An- 

chapter     85,     entitled     "Lunatics"  notated   Statutes  of  Illinois,   with 

granting  such   the   benefit  of   the  Jones  &  Addington's   Supplements 

writ   of   habeas   corpus.     Starr   &  thereto,  Vol.  5,  p.  374;   Kurd's  R. 

S.  of  111.,  1905,  p.  1345, 


IDIOTS,  LUNATICS,  DRUNKARDS,  ETC.  685 

on  any  day  of  the  term,  and  service  shall  be  had  upon  the  per- 
son for  whom  a  conservator  is  sought  to  be  appointed,  in  the 
same  manner  by  summons  or  otherwise  as  service  is  had  in 
chancery.  At  the  time  fixed  for  the  hearing  a  jury  of  six 
persons  shall  be  empaneled  to  try  the  case;  the  court  may,  for 
good  cause,  continue  the  case  from  time  to  time.  If  any  per- 
son be  found  an  idiot,  insane  person,  distracted  or  feeble 
minded  person,  drunkard  or  spendthrift,  and  by  reason  of  such 
condition  incapable  of  managing  or  caring  for  his  own  estate,  it 
shall  be  the  duty  of  the  court  to  appoint  a  conservator  for 
such  person."^ 

769,  Bond  of  conservator — additional  bond — counter  se- 
curity. Section  3  of  the  same  act  as  amended  by  law  of  1903 
is  as  follows:  ''The  conservator  so  appointed  shall  before  en- 
tering upon  the  duties  of  his  office  give  bond  payable  to  the 
People  of  the  State  of  Illinois,  with  at  least  two  sufficient  sure- 
ties to  be  approved  by  the  couyt  at  least  in  double  the  amount 
of  the  ward's  personal  estate  and  six  times  the  amount  of  the 
gross  annual  income  of  the  ward's  real  estate,  provided,  how- 
ever, if  such  real  estate  is  improved  or  is  covered  in  whole 
or  in  part  with  timber  or  is  improved  in  part  and  in  part  cov- 
ered with  timber,  the  penal  sum  in  said  bond  shall  be  increased 
by  an  amount  at  least  double  the  value  of  said  improvements  or 
of  said  timber  or  of  bothj  as  the  case  may  be,  with  such  condi- 
tions as  near  as  may  be  as  provided,  in  the  case  of  bonds  of  the 
guardians  of  infants.  Additional  bonds  and  counter  security 
may  be  required  as  hereinafter  provided.^ 

770.  Summons  and  notice  must  be  served.  In  a  proceeding 
under  the  statute  to  procure  the  appointment  of  a  conservator 
to  a  lunatic,  the  record  should  show  affirmatively,  that  notice 
was  served  and  reasonable  notice  given,  or  the  inquisition  will 

8 — Section  2,  chapter  86,  "Luna-  tics,  etc.,"  as  amended  by  law 
tics,  etc."  Same  statute  citations  of  May  16,  1903.  Starr  &  Curtis 
as  note  7,  Ante,  161.  Annotated  Statute  of  Illinois,  etc., 

9 — Section  3,  chapter  86,  "Luna-     Vol.    5,    p.    375;     Kurd's    Statute, 

1905,  p.  1346.    See  note  (7). 


686  THE  LAW  OF  ESTATES. 

be  set  aside.  If  the  party  be  actually  lunatic,  the  notice  can  do 
no  harm;  but  if  he  be  sane  it  is  of  the  most  momentous  im- 
portance to  him,  and  at  any  rate  it  must  be  his  legal  right.^* 
The  statute  of  1845  relating  to  the  "appointment  of  a  con- 
servator of  an  insane  or  distracted  person  having  an  estate,  real 
or  personal,"  and  the  statute  of  1853,  relating  to  the  "sale  of 
real  estate  of  lunatics  or  distracted  persons,"  applied  to  insane 
married  women,  as  well  as  others,  and  this  notwithstanding, 
at  the  time  these  statutes  were  passed,  the  common  law  govern- 
ing the  rights  of  married  women  obtained  in  this  State.^^  The 
validity  of  the  appointment  of  a  conservator  for  a  lunatic  like 
that  of  an  administrator,  cannot  be  attacked  or  questioned  in 
a  collateral  proceeding,  such  as  a  suit  to  set  aside  the  sale  of 
land  by  the  conservator  under  a  decree  of  court.^^  Manage- 
ment of  property  will  not  be  taken  from  one  supposed  to  be 
insane  without  notice  and  a  hearing." 

771.    When  a  court  of  equity  will  adjudicate  as  to  insanity. 

In  the  case  of  Pyott  v.  Pyott,^^  it  is  said:  "It  is  urged  with 
great  earnestness  that  the  Circuit  Court,  which  rendered  the 
decree,  was  without  jurisdiction  as  to  the  insanity  of  P.  The 
position  of  counsel  seems  to  be,  the  issue  of  insanity  having 
been  raised  by  the  pleadings  the  Circuit  Court  should  have 
suspended  further  proceedings,  and  directed  an  inquisition, 
in  conformity  to  the  common  law,  or  under  the  provisions  of 
chapter  85  or  86  of  the  Revised  Statutes  of  the  State  of  Illinois, 
should  be  had  and  taken  and  the  sanity  of  P.  determined  and 
the  result  certified  to  the  Circuit  Court,  and  that,  at  all  events, 
it  was  essential  the  issue  of  insanity  should  have  been  submitted 
to  and  determined  by  a  jury.  Held:  the  chancery  court  could 
determine  such  issue  without  a  jury.    After  an  inquisition  and 

10— Eddy  V.  People,  15  111.  386.    Duffin     v.     Abbott,     48     111.     18; 

11— Gardner  v.  Maroney,  95  111.     Schmidt    v.    Pierce,    17    111.    App. 
552.  523. 

12— Dodge  V.  Cole,  97  111.  338;         13— Isle  v.  Cranby,  101  111.  App. 
Wright   V.  Walburn,   39   111.   563;     222. 

14—191  111.  289. 


IDIOTS,  LUNATICS,  DRUNKARDS.  ETC.  687 

appointment  of  a  conservator  for  an  insane  person  under  the 
statutory  provisions  on  the  subject,  all  suits  and  proceedings 
in  behalf  of  the  lunatic  should  be  brought  by  the  conservator, 
unless  the  interests  of  the  conservator  are  adverse  to  those  of 
the  ward,  or  for  other  sufficient  reasons  the  court  shall  deem  it 
better  to  appoint  some  other  person  as  next  friend  to  appear 
for,  counsel,  prosecute  or  defend  for  such  insane  person. ^° 
Before  such  inquisition,  the  rule  which  now  obtains  in  both 
England  and  the  United  States  is,  that  a  lunatic  may  sue  in 
his  own  name  by  some  proper  person  appointed  or  recognized 
by  the  court  as  the  next  friend  or  guardian  ad  litem  for  the 
insane  person.^''  When  the  mental  capacity  of  a  party 
to  a  proceeding  arises  for  determination  as  an  issue  in 
a  case  in  chancery  (other  than  under  bill  to  contest  a  will), 
the  better  practice  is  to  cause  the  question  of  sanity  to  be  sub- 
mitted to  a  jury  for  an  advisory  verdict;  but  the  court  is  not 
without  jurisdiction  to  hear  and  determine  the  question  with- 
out a  jury,  and  even  upon  verdict  rendered  by  a  jury  the  court 
may  decline  to  accept  the  finding  of  the  jury  and  decide  for 
itself  the  issue,  upon  the  evidence  presented  in  the  case.^^  The 
court  may  substitute  next  friend  and  make  the  appointment 
when  necessary  so  to  do.^^ 

772.  The  bond  must  comply  with  the  statute.  The  bond  re- 
quired by  the  statute  runs  in  the  name  of  the  People  for  the 
use  of  the  ward,  and  not  for  the  purpose  of  securing  outside 
parties.^®  So  where  the  bond  of  a  conservator  was  given  by  a 
surety  company,  and  such  bond  failed  to  comply  with  the  pro- 
yisions  of  the  3rd  section  of  chapter  86  aforesaid,-"  which  re- 

15—16    Am.    &    Eng.    Ency.    of  18— lago  v.   lago,   168    111.   343; 

Law,    2d    ed.,    p.    601,    and    cases  Isle     v.     Cranby,     199     111.     47; 

cited  in  notes;   see  also  post  776.  Howard    v.    Howard,    1    L.    R.    A. 

16—16    Am.    &    Eng.    Ency.    of  (Ky.)  610;  Pyott  v.  Pyott,  191  111. 

Law,  2d  ed.,  p.  600.  289. 

17— Brown    v.    Miner,    128    111.  19— Witham    v.    People,    89    111. 

148.     See  also.  Dodge  v.   Cole,   97  App.  105. 

111.  338;  Neutzel  v.  Neutzel,  13  111.  20— For  statute  at  large  and  ci- 

App.   542;   Roughan  v.  Morris,  87  tation  see  ante,  767. 
111.  App.  645. 


688  THE  LAW  OP  ESTATES. 

quires  two  sureties,  where  only  one  was  given,  it  was  held  if 
the  statute  is  valid,  the  bond  was  not  only  properly  disap- 
proved, having  but  one  surety  where  two  are  required,  but  as 
the  case  involved  the  construction  of  the  statute,  the  Appellate 
Court  decided  it  could  not  pass  upon  the  same.-^  Section  4 
of  the  act  provides,  ' '  that  suit  may  be  brought  on  such  bond  in 
the  name  of  the  People,  for  the  use  of  any  person  entitled  to 
recover  on  the  breach  thereof,  and  damages  adjudged  on  pro- 
ceedings had  thereon  as  in  other  cases  of  penal  bonds.-^ 

773.  Care  of  estate — custody  of  person — children.  Section  5 
of  chapter  86,  provides:  "Such  conservator  shall  have  the 
care  and  management  of  the  real  and  personal  estate  of  his 
ward,  and  the  custody  of  his  person  unless  otherwise  ordered 
by  the  court,  and  the  custody  and  education  of  his  children 
where  no  other  guardian  is  appointed,  unless  the  court  orders 
otherwise;  but  this  act  shall  not  be  so  construed  as  to  deprive 
the  mother  of  the  custody  and  education  of  the  children  without 
her  consent,  if  she  be  a  fit  and  competent  person  to  have  such 
custody  and  education."-^ 

774.  Inventory — form  of  same.  Section  6  of  the  same  chap- 
ter, provides:  "The  conservator  shall,  immediately  upon  his 
appointment,  take  charge  of  the  estate  of  his  ward,  and  within 
sixty  days  after  such  appointment,  or  if  the  court  is  not  in  ses- 
sion at  the  expiration  of  that  time,  at  the  next  term  thereafter, 
return  to  the  court  a  true  and  perfect  inventory  of  the  real 
and  personal  estate  of  the  ward,  signed  by  him  and  verified  by 
his  affidavit,  etc.  Section  7  provides:  The  inventory  shall  de- 
scribe the  real  estate,  its  probable  value  and  rental,  and  state 
whether  the  same  is  incumbered,  and  if  incumbered,  how  and 
for  how  much ;  what  amount  of  money  is  on  hand,  and  contain  a 
list  of  all  personal  property,   including  annuities  and  credits 

21— People  V.  Church,  103  111.  notated  Statutes  of  Illinois,  Vol. 
App.  133.  2,    p.    2664;    Kurd's    R.    S.    of   111., 

22— Section   4,   chapter   86,   "Lu-     1905,  p.  1346. 
natics,   etc."     Starr  &   Curtis   An-         23 — Section   5,   chapter  86,   "Lu- 
natics, etc." 


IDIOTS,  LUNATICS,  DRUNKARDS,  ETC.  689 

of  the  ward,  designating  them    as  'good,'  'doubtful'    or    'des- 
perate, '  as  the  ease  may  be. '  '^* 

775.  Settlements — final — manner  of  accounting — power  to 
adjust  claims.  Section  8  provides:  "The  conservator  shall,  at 
the  expiration  of  a  year  from  his  appointment,  settle  his  ac- 
counts as  conservator  with  the  County  Court,  and  at  least  once 
each  one  year  thereafter,  and  as  much  oftener  as  the  court  may 
require. ' '  Section  9  provides :  ' '  Such  conservator  at  the  expira- 
tion of  his  trust,  shall  pay  and  deliver  to  those  entitled  thereto, 
all  the  money,  estate  and  title  papers  in  his  hands  as  conserva- 
tor, or  with  which  he  is  chargeable  as  such,  in  such  manner 
as  shall  be  directed  by  the  order  or  decree  of  any  court  hav- 
ing jurisdiction  thereof."  Section  10:  "On  every  accounting 
or  final  settlement  of  a  conservator,  he  shall  exhibit  and  file 
his  account  as  such  conservator,  setting  forth  specifically,  in 
separate  items,  on  what  account  expenditures  were  made  by 
him,  and  all  sums  received  and  paid  out  since  his  last  account- 
ing, and  on  what  account  each  was  received  and  paid  out,  and 
showing  the  true  balance  of  money  on  hand — which  account 
shall  be  accompanied  by  the  proper  vouchers,  and  signed  by 
him  and  verified  by  his  affidavit."  Section  11:  "The  con- 
servator shall  settle  all  accounts  of  his  ward,  and  demand  and 
sue  for  and  receive  in  his  own  name,  as  conservator,  all  per- 
sonal property  of  and  demands  due  the  ward,  or  with  the  ap- 
probation of  the  court,  compound  for  the  same,  and  give  a 
discharge  to  the  debtor  upon  receiving  a  fair  and  just  dividend 
of  his  estate  and  effects.  "^^  This  was  the  law  of  1869,  incor- 
porated in  act  of  1874.  Laws  of  1869,  p.  363,  sec.  5 ;  E.  S.  1845, 
p.  277,  sec.  4.  Where  a  conservator  for  a  period  of  thirteen 
years  failed  to  keep  accounts  and  rendered  no  reports,  it  was 

24 — Sections  6  and  7,  chapter  86,  Curtis  Annotated  Statutes  of  Illi- 

"Lunatics,    etc."     Starr    &    Curtis  nois.    Vol.    2,    p.    2665,    and    cases 

Annotated  Statutes  of  Illinois,  Vol.  cited;    Kurd's  R.   S.   of   111..   1905, 

2,  pp.  2664,  2665;   Kurd's  R.  S.  of  p.  1347.       These  sections  give  the 

111.,  1905,  p.  1346.  law   of  1869,   incorporated   in   the 

25— Sections  8,   9,   10,  11,  chap-  act  of  1874.    Laws  of  1869,  p.  363, 

ter   86,    "Lunatics,   etc."     Starr   &  sec.  5;  R.  S.  1845,  p.  277,  sec.  4. 
44 


690  THE  LAW  OF  ESTATES. 

held  he  was  not  entitled  to  compensation;  and  was  estopped 
from  claiming  allowance  for  services  during  such  time.^'^  The 
yearly  reports  of  a  conservator,  are  only  prima  facie  evidence 
upon  the  final  accounting,  and  this  is  so,  notwithstanding  the 
yearly  accounts  have  been  duly  approved.  Upon  the  final  ac- 
counting, such  yearly  accounts  may  be  re-opened,  and  the  costs 
occasioned  by  contesting  the  yearly  reports,  in  certain  cases 
may  be  taxed  to  the  conservator.^'  A  claim  not  included  in 
conservator's  inventory  or  account  is  not  barred  in  subsequent 
suit  by  ward.^^ 

776.  Performance  of  contracts — legal  proceedings,  appear- 
ance by  conservator.  Section  12  of  the  act,  provides:  "The 
conservator,  by  permission  and  subject  to  the  direction  of  the 
court  which  appointed  him,  may  perform  the  personal  con- 
tracts of  his  ward,  mad6  in  good  faith  and  legally  subsisting 
at  the  time  of  the  commencement  of  his  disability,  and  which 
may  be  performed  with  advantage  to  the  estate  of  the  ward.'* 
Section  13:  "He  shall  appear  for  and  represent  his  ward  in 
all  suits  and  proceedings,  unless  another  person  is  appointed  for 
that  purpose,  as  conservator  or  next  friend;  but  nothing  con- 
tained in  this  act  shall  impair  or  affect  the  power  of  any  court 
to  appoint  a  conservator  or  next  friend  to  defend  the  interest 
of  said  ward  impleaded  in  such  court,  or  interested  in  a  suit  or 
matter  therein  pending,  nor  its  power  to  appoint  or  allow  any 
person,  as  next  friend  of  such  ward,  to  commence,  prosecute 
or  defend  any  suit  in  his  behalf,  subject  to  the  direction  of 
such  court.  "^*     Although  a  lunatic   or  insane   person   is  not 

2Q—In    re    Conservatorship     of  29— Sections  12,  13,  chapter  86, 

Hall,  19  111.  App.  295.  "Lunatics,    etc."     Starr    &    Curtis 

27 — Wilcox    V.    Parker,    23    111.  Annotated     Statutes     of     Illinois, 

App.    429.      See    also,    accounting  with  Jones  &  Addington's  Supple- 

and    settlement   by    executor,    ad-  ments    thereto,    Vol.    2,    pp.    2665, 

ministrator    and    guardian,    under  2666,   and   cases   cited;    Vol.   4,   p. 

chapters    in    this    work     relating  816,    and    cases    cited;    Vol.    5,    p. 

thereto;     and     authorities     where  375,  and  cases  cited;   Kurd's  R.  S. 

duties  are  similar.  of  111.,   1905,  p.   1317.     In   lieu  of 

28— Raymond  v.  Vaughn,  17  111.  law  of  1869,  p.  366,  sec.  6;   R.  S. 

App.  144.  1845,  p.  277,  sec.  5. 


IDIOTS,  LUNATICS,  DRUNKARDS,  ETC.  691 

punishable  criminally,  he  is  liable  in  a  civil  action  for  any  tort 
he  may  commit.^"  In  an  action  by  the  personal  representative 
of  a  person  wrongfully  killed,  against  the  estate  of  the  party 
killing,  to  recover  compensation  for  the  death,  evidence  of  the 
insanity  of  the  latter  party  at  the  time  of  his  wrongful  act 
causing  the  death,  is  inadmissible  when  offered  in  defense  of 
the  action.  A  lunatic  having  no  will  of  his  own,  and  his  acts 
lacking  the  element  of  intention,  the  only  proper  measure  of 
damages  in  an  action  against  him  for  a  wrong,  is  the  mere 
compensation  of  the  party  injured.  Punishment  is  not  the  ob- 
ject of  the  law  when  persons  unsound  in  mind  are  the  wrong- 
doers.^^ There  is  no  statute  authorizing  the  allowance  of  claims 
against  the  estate  of  an  insane  person  in  the  hands  of  his  con- 
servator, and  the  allowance  of  the  same  in  the  County  Court 
will  be  a  nullity.  The  proper  remedy  of  a  creditor  of  one  who 
is  adjudged  to  be  insane,  is  by  suit  against  the  conservator  as  his 
representative,  under  which  the  creditor  may  have  any  prop- 
erty of  the  insane  person  sold  under  execution.^^  And  so  until 
the  appointment  and  qualification  of  a  conservator  for  an  in- 
sane person,  it  is  clear  that  suit  may  be  brought  in  such  per- 
son's name  for  the  recovery  of  a  debt  due  him.^^  In  a  case 
where  there  was  no  conservator  appointed  under  the  statute, 
it  was  held,  that  suit  for  lunatic  might  be  instituted  in  name 
of  his  next  friend  on  his  behalf.^*  In  suits  in  chancery  by  an 
insane  person  suing  by  next  friend  where  no  conservator  has 
been  appointed,  the  court  treats  the  proceeding  as  proper.^*^ 
If  the  court  has  taken  jurisdiction  of  a  case  by  permitting  a 

30— Cooley    on    Torts,    sees.    99,  33 — Chicago  R.  I.  and  Pacific  Ry. 

103;     Sherman    and    Redfield    on  Co.  v.  Hunger,  78  111.  300;   Speck 

Negligence,    section   57;    Mclntyre  v.  Pullman  Palace  Car  Co.,  121  111. 

V.  Sholty,  24  111.  App.  605;    Same  33. 

V.  Same,  121  111.  600.  34— Ryder    v.    Topping,    15    111. 

31— Mclntyre  v,  Sholty,  121  111.  App.  216. 

600.  35 — Van    Buskirk    v.    Van    Bus- 

32— Morgan    v.    Hoydt,    69    111.  kirk,  148  111.  9;  Ronan  v.  Bluhm, 

App.  489;   Fruitt  v.  Anderson,  12  173   111.  277;    Pyott  v.  Pyott,   191 

111.  App.  430.  111.  280;   16  Am.  &  Eng.  Ency.  of 

Law,  2d  ed.,  p.  601. 


692  THE  LAW  OF  ESTATES. 

bill  to  be  filed  in  the  name  of  an  alleged  insane  person  by  a 
party  appointed  by  the  court  as  next  friend,  the  fact  that  the 
alleged  insane  person  appears  by  attorney  and  moves  to  dis- 
miss the  case  does  not  oust  the  court  of  jurisdiction;  but  the 
court  may  investigate  the  mental  condition  of  such  person, 
either  by  hearing  evidence  and  passing  upon  the  question  or 
by  submitting  the  question  to  a  jury.^®  The  presumption  is, 
that  adult  persons  of  sound  mind  are  capable  of  managing  their 
own  affairs,  and  caring  for  their  own  estates;  and  the  mere 
fact  that  it  is  alleged  in  an  affidavit  filed  in  support  of  a  mo- 
tion by  a  person  asking  that  he  be  appointed  the  next  friend 
to  a  particular  person  who,  it  is  alleged,  is  of  unsound  mind 
and  not  capable  of  taking  care  of  his  own  affairs,  does  not 
destroy  that  presumption.^' 

777.  Contracts,  when  and  as  to  whom  void.  Section  14  of 
chapter  86,  provides:  "Every  note,  bill,  bond  or  other  con- 
tract by  an  idiot,  lunatic,  distracted  person  or  spendthrift, 
made  after  the  finding  of  the  jury,  as  provided  in  section  1 
of  this  act,  shall  be  void  as  against  the  idiot,  lunatic,  distracted 
person,  drunkard  or  spendthrift,  and  his  estate ;  but  the  person 
making  any  contract  with  such  idiot,  lunatic,  distracted  person 
or  spendthrift  shall  be  bound  thereby.  "^^  Although  a  person 
may  have  been  adjudged  insane,  yet,  if  no  conservator  has  been 
appointed,  and  he  is  in  the  management  of  his  business,  and 
there  is  nothing  about  his  appearance  to  indicate  his  incapacity 
to  contract,  if  he  purchases  an  article  at  a  fair  and  reasonable 

36_isle  V.  Cranby,  199  111.  39.  ton  v.  Hall,  55  Minn.  22;   Beall  v. 

37_Isie  V.  Cranby,  199  111.  39.  Smith,  L.  R.  9  Ch.  85;  Jones  v. 
In  the  latter  case  it  is  held:  If  Lloyd,  L.  R.  18  Eq.  265;  Denny  v. 
a  person  of  unsound  mind  has  not  Denny,  8  Allen,  311;  Story's  Eq. 
been  so  adjudged  or  has  no  con-  Pleading,  sec.  66;  Malin  v.  Malin, 
servator,  a  suit  to  protect  the  Johns.  Ch.  240. 
rights  of  such  person  may  be  38 — Section  14,  chapter  86, 
brought  in  his  name  by  some  re-  "Lunatics,  etc."  Starr  &  Curtis 
sponsible  party  appointed  by  the  Annotated  Statutes  of  Illinois, 
court  to  represent  him  as  next  Vol.  2,  p.  2666,  and  cases  cited  un- 
friend. See  the  following  lead-  der  section  of  statute;  Hurd's  R. 
ing  cases  on  the  subject:     Plymp-  S.  of  111.,  1905,  p.  1317. 


IDIOTS,  LUNATICS,  DRUNKARDS,  ETC.  693 

price,  necessary  and  useful  in  his  business,  the  seller  having 
no  notice  of  his  being  adjudged  insane,  he  will  be  liable  to  pay 
the  price  he  agreed  to  pay,  and  it  will  be  error  to  enjoin  a  judg- 
ment on  a  note  given  for  the  price.^^  The  same  authority  hold- 
ing, notwithstanding  the  statute,  a  contract  made  with  a  lunatic 
in  a  lucid  interval,  is  binding,  and  may  be  enforced  against 
him.*"  The  fact  that  a  person  has  been  adjudged  lunatic  or 
insane,  and  is  under  the  ban  of  the  law  when  he  gave  a  note, 
is  a  legal  defense  to  an  action  thereon,  and  should  be  made 
at  law  when  suit  is  brought  on  note  and  not  attempted  in 
equity.*^  And  where  a  conveyance  of  land  is  set  aside  in  equity 
on  the  ground  of  the  insanity  or  lunacy  of  the  grantor,  and 
an  account  taken,  the  grantee,  having  purchased  in  good  faith, 
without  any  knowledge  of  the  alleged  insanity,  will  be  enti- 
tled to  be  reimbursed  that  which  he  has  paid  on  the  same.*^ 
And  where  an  insane  person  received  the  benefit  of  all  the  pur- 
chase money  received  from  a  sale  made  by  his  conservator,  and 
it  appeared  that  at  the  time  of  receiving  it,  he  had  sufficient 
capacity  to  transact  business  intelligently,  and  that  he  compre- 
hended what  had  been  done;  it  was  held,  that  he  was  estopped 
from  afterwards  denying  the  validity  of  such  sale.*^  To  im- 
peach a  contract  for  mental  incapacity  the  mental  weakness 
must  have  been  such  that  the  party  was  incapable  of  under- 
standing what  he  was  doing,  or  comprehending  the  terms, 
scope  and  effect  of  his  contract.**  Where,  as  in  Illinois,  a  con- 
servator has  merely  the  care  and  management  of  his  insane 
ward's  real  estate,  without  title  thereto,  an  action  affecting  the 
title  to  such  real  estate  should  be  brought  against  the  ward, 


39— McCormick  v.  Littler,  85  111.  85  111.  296-299;   Menkins  v.  Light- 

62.  ner,  18  111.  282. 

40— Chitty  on  Contracts,  8  Am.  43— Searle  v.   Galbraith,   73   111. 

ed.   132;    4   Parsons  on  Contracts,  271. 

4tli  ed.  314;  Lilly  v.  Waggoner,  27  44— Sands    v.     Potter,     165     111. 

111.  395.  397;    Miller  v.  Craig,  36  111.   109; 

41— McCormick    v.     Littler,     85  Willemin    v.    Dunn,    93    111.    511; 

111.  62.  Kimball  v.  Cuddy,  117  111.  213. 

42 — Scanlon  v.   Cobb,  Guardian, 


694  THE  LAW  OF  ESTATES. 

and  the  judgment  must  be  against  him,  and  not  against  the 
conservator.^^  Mere  mental  weakness  does  not  justify  a  court 
of  equity  setting  aside  an  executed  contract,  provided  such 
weakness  does  not  amount  to  an  inability  on  the  part  of  the 
afflicted  person  to  comprehend  the  contract.*'' 

778.  One  knowingly  dealing  with  insane  person  is  deemed 
guilty  of  fraud.  Where  the  question  is  simply  as  to  which  of 
the  two  titles  is  the  better  legal  title,  the  party  should  bring 
his  action  in  a  court  of  law,  but  courts  of  equity  will  assume 
jurisdiction  to  set  aside  conveyances  fraudulently  obtained.*^ 
While  a  court  of  equity  will  not  take  jurisdiction  of  every  case 
of  fraud  which  may  be  presented,  yet  there  are  few  questions 
over  which  its  jurisdiction  is  more  universal,  and  especially 
so  when  it  relates  to  the  transfer  of  real  estate.*^  Although 
it  may  be  true  that  the  fraud^  if  proved,  might  defeat  that  title 
in  a  court  of  law,  yet  the  courts  of  equity  have  ever  claimed  to 
possess  superior  facilities  for  investigating  such  questions,  to 
the  courts  of  law,  and  certainly  the  relief  which  they  can  give 
is,  in  many  cases,  more  satisfactory.  When  the  fraud  is  once 
established,  they  can  cut  up  the  fraudulent  conveyance  or  con- 
tract by  the  very  roots,  and  leave  the  party  in  as  secure  a  po- 
sition as  if  it  had  never  existed."*^  "Whether  a  deed  executed 
by  an  insane  person  is  void,  or  voidable  only,  such  may 
be  set  aside  by  the  insane  person  after  his  restoration  to  sanity, 
or  it  may  be  set  aside  by  a  vendee,  to  whom  such  insane  person 
conveys  the  premises,  after  his  restoration  to  sanity.^"     Upon 


45 — Scott    V.    Bassett,    194    111.  102  111.  596;   Breckenridge's  Heirs 

602.  V.  Ormsby,  1  J.  J,  Marshall,  236; 

46— SafEer  v.  Mast,  223  111.  108.  Kilbee  v.    Myrick,    12    Fla.    431; 

47— Clay   v.   Hammond,   199   111.  Langdon  v.  People,  133  111.  382. 

375.     In  this  case  the   rule  "One  48 — Kennedy  v.  Northup,  15  111. 

knowingly    dealing    with    an    in-  148. 

sane    person    with    knowledge    of  49 — Clay  v.   Hammond,  199  111. 

such  insanity  is  deemed  guilty  of  375. 

premeditated    fraud,"    is    applied  50 — Hanna    v.    Read,    102    111. 

firmly  in  the  case.     Supported  by  596;   Breckenridge  Heirs  v.  Orms- 

the    following:      Hanna   v.    Read,  by,  1  J.  J.  Marshall,  236. 


IDIOTS,  LUNATICS,  DRUNKARDS,  ETC.  695 

a  review  of  cases  it  was  held:  **Aiid  these  authorities  also 
show,  that  a  purchaser  or  devisee,  holding  his  right  from  the 
infant  or  non  compos,  derived  after  the  attainment  of  legal 
discretion,  or  restoration  to  sanity,  may  avoid  a  deed  made  for 
the  same  estate  during  disability. "...  Every  person  is  deemed 
guilty  of  meditated  fraud  when  he  deals  with  an  insane  person 
with  knowledge  of  such  insanity.^^  And  the  court  in  a  proper 
proceeding  will  appoint  a  receiver  to  protect  the  estate  of  an 
insane  person  on  a  bill  filed  by  next  friend.®^ 

779.  What  contracts  voidable.  Section  15  provides :  Every 
contract  made  with  an  idiot,  lunatic  or  distracted  person  be- 
fore such  finding,  or  with  a  drunkard  or  spendthrift  made  after 
the  application  for  the  appointment  of  a  conservator,  may  be 
avoided,  except  in  favor  of  the  person  fraudulently  making  the 
same.^^  A  deed  by  one  for  whom  a  conservator  is  subsequently 
appointed  should  not  be  set  aside  without  requiring  restoration 
of  the  money  paid  by  the  grantee  and  the  return  of  the  prop- 
erty or  its  equivalent,  which  he  conveyed  to  a  third  party  at 
the  instance  of  the  grantor  in  part  consideration  for  his  deed, 
where  the  grantee  had  no  knowledge  or  notice  of  the  grantor's 
infirmity  or  of  any  undue  influence  by  the  party  to  whom  the 
grantee  made  his  conveyance.^*  A  confession  of  judgment  by 
insane  person  will  be  set  aside.^^  And  a  ratification  of  voidable 
deed  after  restoration  of  reason,  must  be  evidenced  by  intelli- 
gent act.^* 

780.  Swindling  an  idiot  or  lunatic.  Section  16  of  the  same 
act,  provides:    "Whoever,  by  trading  with,  bartering,  gaming, 

51 — Kilbee    v.    Myrick,    12    Fla.  with  Jones  &  Addington's  Supple- 

431;       Breckenridge's      Heirs      v.  ments  thereto.  Vol.  2,  p.  2667,  Vol. 

Ormsby,    1    J.    J.    Marshall,    236;  4,  p.  816,  and  cases  cited;  Kurd's 

Clay  V.  Hammond,  199  111.  376.  R.   S.   of  111.,  1905,   p.  1347. 

52— Roughan   v.   Morris,   87   111.  54— Eldridge  v.  Palmer,  185  111, 

App.  645.  618. 

53 — Section      15,      chapter      8G,  55 — Crawford    v.    Thomson,    161 

"Lunatics,    etc."      Starr   &    Curtis  111.  165. 

Annotated     Statutes     of     Illinois,  56 — Beasley  v.  Beasley,  180  IlL 

168. 


696  THE  LAW  OF  ESTATES. 

or  any  other  device,  possesses  himself  of  any  property  or  val- 
uable thing  belonging  to  any  idiot,  lunatic  or  notoriously  dis- 
tracted person,  drunkard  or  spendthrift,  shall  be  deemed  guilty 
of  swindling,  and  upon  conviction  thereof  be  fined  in  a  sum  not 
exceeding  $2,000,  or  confined  in  the  county  jail  not  exceed- 
ing one  year,  or  both."^^ 

781.  Management  of  estate.  Section  17  of  the  same  act, 
provides :  ' '  The  conservator  shall  manage  the  estate  of  his  ward 
frugally  and  without  waste,  and  apply  the  income  and  profits 
thereof,  so  far  as  the  same  may  be  necessary,  to  the  comfort  and 
suitable  support  of  his  ward  and  his  family,  and  the  education 
of  his  children.  "^^  "Where  the  statute  of  a  State  authorizes 
the  Probate  Court  to  appoint  a  married  woman  guardian  of  an 
insane  person,  etc.,  without  the  concurrence  of  her  husband,  and 
the  court  appoints  the  wife  of  an  insane  person  as  his  guardian, 
her  acts  will  be  legal  and  binding  until  removed,  whether  the 
statute  contemplated  such  an  appointment  or  not.  Whether 
the  wife  might  be  so  appointed,  in  nowise  affects  the  power  of 
the  court,  even  though  its  action  was  erroneous.  ^^  A  suit  in 
assumpsit  commenced  in  the  County  Court  of  Kankakee  county 
to  recover  for  the  support  of  an  insane  person  of  means,  who 
was  returned  by  the  State  authorities  to  the  county,  and  was 
kept  by  it  for  a  period  of  years  in  the  insane  asylum  with  the 
knowledge  of  his  conservator,  it  was  held:  His  estate  was  liable 
to  the  county  for  his  necessary  support,  care  and  medical  atten- 
tion furnished  by  the  county  during  such  period.®"  This  decision 
is  based  upon  the  statute  above  which  requires  the  conservator 
to  apply  the  income  and  profits  of  his  ward's  estate,  so  far  as 
may  be  necessary,  to  the  comfort  and  suitable  support  of  his 
ward.     And  where  a  conservator  made  an  allowance    to    his 

57 — Section      16,      chapter      86,        58 — Section     17,      chapter      86, 
"Lunatics,    etc."      Starr    &    Curtis     "Lunatics,  etc."     Same  statute  ci- 
Annotated     Statutes     of     Illinois,     tation  as  note  57. 
Vol.   2,   p.   2667;    Hurd's  R.   S.   of         59— Wing  v.  Dodge,  80  111.  564. 
111.,  1905,  p.  1347.  60— Dandurand     v.     County     of 

Kankakee,  196  111.  539. 


IDIOTS,  LUNATICS,  DRUNKARDS,  ETC.  697 

"ward's  daughter,  though  of  age,  was  weak  in  mind  and  body; 
the  court  held  such  an  allowance  was  right  and  proper.*^^ 

61 — In  re  Conservatorship  of  Supplements  thereto,  Vol.  2,  p. 
Hall,  19  111.  App.  295.  See  Starr  2667;  Vol.  4,  p.  817;  Vol.  5,  p.  375, 
&  Curtis  Annotated  Statutes  of  U-  and  cases  cited  under  section  17, 
linols,   with  Jones  &  Addington's    chapter  86,  "Lunatics,  etc."  Hurd's 

R.  S.  of  111.,  1905,  p.  1347. 


CHAPTER   XLV 


COMMITMENT  AND  DETENTION  OF  LUNATICS 


Sec. 

782.  General   and  introductory  re- 

marks. 

783.  "Insane"   defined. 

784.  Not  restraint  of  liberty. 

785.  Proceedings  for  supposed   in- 

sanity statement. 

786.  County   judge   to    issue   writ, 

hearing. 

787.  Inquest  in  lunacy  shall  be  by 

jury  or  a  commission  of  two 
physicians. 

788.  Jury    of   six,    qualified   physi- 

cian to  be  one  of  jury. 

789.  Inquest  may  be  held  in  open 

court,  in  chambers,  or  at  the 
home  of  the  person  alleged 
to  be  insane,  excluding  spec- 
tators. 

790.  The  provisions  of  the  statute 

reviewed  and  upheld. 

791.  Interrogatories     in     writing, 

court  may  set  aside  findings. 
Record  of  finding. 

792.  Estate   of   insane   person,   in- 

quest in  lunacy,  appoint- 
ment of  conservator,  filing 
record  in  probate  court. 

793.  Jurisdiction     of     person    not 

charged  with  crime,  county 
judge  to  keep  separate 
docket. 

794.  Insane  person  kept  at  expense 

of  State. 

795.  Judge    to    inquire   into    pecu- 

niary condition  of  person 
charged  with  lunacy. 


Sec. 
796. 

797. 


798. 

799. 

800, 
801. 

802. 

803. 
804. 

805. 

806. 


807. 
808. 


809. 


810. 


Clerk's  statement  to  superin- 
tendent of  hospital. 

Warrant  of  commitment  in 
duplicate,  indorsement,  wo- 
man protected. 

Private  not  received,  except 
when. 

Communication  with  friends 
permitted,  when. 

Restraint  allowed  only,  when. 

Authority  to  discharge  pa- 
tients vested  in  trustees. 

Not  discharged  without  suit- 
able clothing  and  money. 

Entitled  to  habeas  corpus. 

Discharged,  receipt  of  super- 
intendent. 

Escape;  death  of  patient,  pro- 
ceedings. 

Conspiracy  to  commit  person 
to  hospital  or  asylum,  pen- 
alty. 

Costs  of  proceedings. 

Act  does  not  apply  to  persons 
in  custody  on  criminal 
charge.  Convicts  in  peni- 
tentiary admitted,  when. 
Non-resident  admitted, 

when. 

Administration  and  enforce- 
ment of  laws  entrusted  to 
State  Commissioners  of  Pub- 
lic Charities. 

State  Commissioners  of  Pub- 
lic Charities.    Powers. 


698 


COMMITMENT    OF    LUNATICS.  699 


Sec. 

811.  Copies  of  law  to  be  printed  by- 
Commissioner  of  State  Con- 
tracts. Early  stages  of  in- 
sanity, treatment. 


Sec. 

812.  Acquittal  of  crime  on  plea  of 

insanity,   proceedings. 

813.  Repeal. 

814.  Superintendent     to      furnish. 

clerk  with  list,  penalty. 


Sec.  782.  General  and  introductory  remarks.  The  several 
acts  of  the  legislature  of  Illinois,  prior  to  the  revision  of  the 
laws  in  1874,  relating  to  the  care  of  the  person  and  property, 
of  lunatics,  idiots  or  distracted  persons,  and  the  commitment 
and  detention  of  such,  were  incomplete  and  unsatisfactory  in 
their  operation,  leaving  as  such  legislation  did  much  undone, 
pertaining  to  the  care  of  the  person  of  these  unfortunates.  We 
refer  particularly  to  the  acts  of  1845,  1847,  1853,  1865  and 
1867.  The  revision  and  enactments  of  1874,  afforded  some  meas- 
ure of  relief  in  this  particular,  but  it  was  not  until  the  revi- 
sion of  this  law  in  1893,  enacted  to  meet  the  absolute  require- 
ments of  the  State  and  many  counties,  who  were  unable  be- 
cause of  lack  of  proper  legislation  to  take  care  of  the  insane  and 
distracted  persons  increasing  in  numbers  throughout  the  State, 
that  the  legislature  took  notice,  that  in  this  respect  Illinois  was 
much  behind  its  sister  states  in  its  care  of  such  persons.  State 
pride,  one  of  the  cherished  principles  of  the  union  of  States,  has 
always  been  and  always  will  be  an  incentive  necessary  in  forc- 
ing this  class  of  legislation.  State  and  county  authorities  rec- 
ognize the  fact,  that  the  unfortunate  insane,  must  of  necessity 
be  cared  for  at  the  charitable  institutions  of  the  State  erected 
for  this  purpose  and  supported  by  a  tax  upon  the  people  of  the 
State.  The  lunatic,  idiot,  drunkard  and  spendthrift,  are  the 
outgrowth  of  society,  as  that  term  is  applied  commonly  to  the 
people  at  large.  These  unfortunates,  always  the  object  of  leg- 
islative enactments,  controlling  the  person  and  property  of 
such,  have  certain  recognized  rights  that  the  more  fortunate 
must  respect.  It  is  well  to  recognize,  that  the  spirit  of  Amer- 
ican citizenship,  when  supported  by  the  public  newspapers  of 
the  day,  will  not  for  an  instant,  tolerate  any  abuse  of  the  in- 
mates of  such  institutions.     These  unfortunates  are  wards  of 


700  THE  LAW  OF  ESTATES. 

the  State,  and  it,  as  their  guardian  through  proper  and  honest 
officials,  is  expected  to  perform  the  duties  relating  to  such 
guardianship  faithfully  and  well.  This  chapter  deals  princi- 
pally with  the  commitment  and  detention  of  lunatics,  adjudged 
such,  by  proper  inquisition;  we  therefore  at  length  give  the 
statute  law  of  Illinois  revised  in  1893,  and  amendments  thereof, 
with  such  authorities  in  adjudicated  cases,  arising  under  this 
statute,  since,  and  before  its  enactment. 

783.  Insane  defined.  Section  1,  chapter  85  of  the  statute  of 
Illinois,  entitled  "Lunatics,"  under  the  revision  of  the  act  in 
1893,  provides:  That  the  word  insane  in  this  act  shall  be  con- 
strued to  mean  any  person  who,  by  reason  of  unsoundness  of 
mind,  is  incapable  of  managing  and  caring  for  his  own  estate, 
or  is  dangerous  to  himself  or  others,  if  permitted  to  go  at  large, 
or  is  in  such  condition  of  mind  or  body  as  to  be  a  fit  subject  for 
care  and  treatment  in  a  hospital  or  asylum  for  the  insane: 
Provided,  that  no  person,  idiot  from  birth,  or  whose  mental  de- 
velopment was  arrested  by  disease  or  physical  injury  occurring 
prior  to  the  age  of  puberty,  and  no  person  who  is  afflicted  with 
simple  epilepsy  shall  be  regarded  as  insane,  unless  the  mani- 
festations of  abnormal  excitability,  violence  or  homicidal  or 
suicidal  impulses  are  such  as  to  render  his  confinement  in  a 
hospital  or  asylum  for  the  insane  a  proper  precaution  to  pre- 
vent him  from  injuring  himself  or  others."^ 

784.  Not  restraint  of  liberty.  Section  2.  "  Except  as  herein 
provided,  from  and  after  the  passage  of  this  act  no  insane  per- 
son, or  person  supposed  to  be  insane,  but  who  shall  not  have 
been  legally  adjudged  to  be  insane,  shall,  by  reason  of  his  in- 
sanity or  supposed  insanity,  be  restrained  of  his  liberty:  Pro- 
vided, that  this  section  shall  not  be  construed  to  forbid  the  tem- 
porary detention  of  an  alleged  lunatic,  for  a  reasonable  time, 
not  exceeding  ten  days,  pending  a  judicial  investigation  of  his 
mental  condition.  "^ 

1— Section  1,  chapter  85,  "Luna-  Kurd's  R.  S.  of  111.,  1905,  p.  1338. 
tics."  Starr  &  Curtis  Annotated  2 — Section  2,  chapter  85,  "Luna- 
Statutes  of  Illinois,  Vol.  2,  p.  2652;     tics."     Starr  &  Curtis,  etc..  Vol.  2, 


COMMITMENT    OF    LUNATICS.  701 

785.  Proceedings  for  supposed  insanity — statement.  Section 
3.  "When  any  person  shall  be,  or  be  supposed  to  be,  insane, 
any  reputable  citizen  of  the  county  in  which  such  patient  re- 
sides or  is  found  may  file  with  the  clerk  of  the  County  Court 
of  said  county,  a  statementj  in  writing,  under  oath,  setting 
forth  that  the  person  named  is  insane  and  unsafe  to  be  at  large, 
or  suffering  under  mental  derangement,  and  that  the  welfare 
of  himself  or  others  requires  his  restraint  or  commitment  to 
some  hospital  or  asylum  for  the  insane ;  the  said  statement  must 
be  accompanied  by  the  names  of  the  witnesses  (one  of  whom 
at  least  must  be  a  physician  having  personal  knowledge  of  the 
case),  by  whom  the  truth  of  the  allegations  therein  contained 
may  be  substantiated  and  proved :  Provided,  that  when  it  shall 
appear  by  such  statement  the  person  alleged  to  be  insane  has 
not  been  examined  by  a  physician,  the  judge  may  appoint  a 
qualified  physician  of  the  county  to  make  such  examination  and 
allow  him  compensation  therefor,  not  exceeding  five  dollars, 
which  shall  be  taxed  and  collected  as  herein  provided  in  respect 
to  other  costs  in  proceedings  in  inquest  of  lunacy."^ 

786.  County  judge  to  issue  writ — Shearing.  Section  4. 
**Upon  the  filing  of  the  statement  aforesaid,  unless  the  person, 
alleged  to  be  insane  shall  be  brought  before  the  court  without 
a  writ,  or  unless  an  affidavit  of  some  credible  person  shall  be 
filed  setting  forth  that,  in  the  opinion  of  the  affiant,  the  phys- 
ical or  mental  condition  of  the  said  person  is  such  (stating  the 
same),  as  to  render  it  manifestly  improper  that  such  person 
be  brought  before  the  court,  the  judge  of  the  county  shall  direct 
the  clerk  to  issue  a  writ,  directed  to  the  sheriff'  or  to  any  con- 
stable or  to  the  person  having  custody  or  charge  of  the  person 
alleged  to  be  insane,  commanding  such  person  to  be  brought 
before  the  court  at  such  time  and  place  as  the  judge  may  ap- 
point for  the  hearing  and  determining  of  the  matter;  and  in 

p.  2653;   Kurd's  Statutes,  1905,  p.     tics."    Starr    &    Curtis    Annotated 

1338.  Statutes      of    Illinois,    Vol.  2,    p. 

3— Section  3,  chapter  85,  "Luna-     2653;  Kurd's  R.  S.  of  111.,  1905,  p. 

1338. 


702  THE  LAW  OF  ESTATES. 

no  case  shall  such  hearing  take  place  until  the  person  alleged 
to  be  insane  shall  have  been  notified  as  the  court  shall  direct,"* 

787.  Inquests  in  lunacy  shall  be  by  jury  or  a  commission  of 
two  physicians.  Section  5  as  amended  May  14,  1903,  is  as  fol- 
lows: "Inquests  in  lunacy  shall  be  by  jury  or  a  commission 
of  two  licensed  physicians  engaged  in  active  practice  in  said 
county,  as  hereinafter  provided."  Section  6  revised  law  of 
1893,  provides:  "When  no  jury  is  demanded  and  the  circum- 
stances of  the  case  are  such  that  there  appears  to  the  judge 
to  be  no  occasion  for  the  impaneling  of  a  jury,  or  that  a  trial 
by  jury  would  for  any  reason  be  inexpedient  or  improper,  the 
judge  shall  appoint  a  commission  of  two  qualified  physicians 
in  regular  and  active  practice  who  are  residents  of  the  county, 
to  be  chosen  by  himself,  on  account  of  their  known  competency 
and  integrity,  who  shall  make  a  personal  examination  of  the 
patient  and  file  with  the  clerk  of  the  court  a  report  in  writing 
verified  by  affidavit,  of  the  result  of  their  inquiries  together 
with  their  conclusions  and  recommendations.  The  commission- 
ers herein  provided  for  shall  have  power  to  administer  oaths 
and  take  sworn  testimony."^ 

788.  Jury  of  six — qualified  physicians.  Section  7  of  the 
revision  of  1893,  provides:  "In  all  cases  of  inquest  by  jury, 
the  jury  shall  consist  of  six  persons,  and  one  of  the  jurors  at 
least  must  be  a  qualified  physician,  and  the  proceedings  shall 
conform  in  all  respects,  as  nearly  as  may  bcj  to  the  ordinary 
practice  of  the  County  Court.  The  rights  of  the  person  whose 
mental  condition  is  inquired  into  shall  be  the  same  as  those 
of  any  defendant  in  a.  civil  suit, '  "^ 

789.  Inquests  may  be  held  in  open  courts  at  home  of  person 
alleged  to  be  insane  excluding  spectators.  Section  8  as  amended 

4 — Section  4,  chapter  85,  "Luna-  1903.     Starr  &  Curtis   Annotated 

tics."      Starr    &    Curtis    Statutes,  Statutes     of     Illinois,     Vol.    2,    p. 

etc.,  Vol.  2,  p.   2653;    Kurd's  Stat-  2653;   Kurd's  R.  S.  of  111.,  1905,  p. 

utes,  1905,  p.   1339.  1339. 

5 — Section  5  and  6,  chapter  85,  6 — Section  7,  chapter  85,  "Luna- 

"Lunatics."    As  amended  May  14,  tics," 


COMMITMENT    OF    LUNATICS.  703 

in  1903,  provides:  "Inquests  in  lunacy  may  be  in  open  court 
or  in  chambers,  or  at  the  home  of  the  person  alleged  to  be  in- 
sane, at  the  discretion  of  the  court.  The  judge  shall  preside 
whether  the  inquest  is  by  jury  or  a  commission,  and  the  pres- 
ence of  the  patient  shall  be  indispensable,  and  no  proceedings 
can  be  had  in  his  absence,  unless  otherwise  provided  for  in  this 
act.  The  judge  may  require  all  persons  other  than  the  patient, 
his  friends,  witnesses,  licensed  attorneys  and  officers  of  the 
court  to  withdraw  from  the  room  during  the  inquest. '  '^ 

790.    The  provisions  of  the  statute  reviewed  and  upheld.    In 

the  case  of  Haynes  v.  Clearlock,^  it  is  said:  "If  this  statute 
made  no  provision  for  a  notice  and  hearing,  then  the  question 
of  its  validity  would  be  fairly  involved.  Regarding  notice,  the 
statute  provides,  that  in  no  case  shall  a  hearing  take  place  until 
the  person  alleged  to  be  insane  shall  be  notified  as  the  court 
shall  direct.  The  character  of  the  notice  is  left  to  the  sound 
discretion  of  the  court ;  but  the  only  question  which  could  arise 
would  be  w^hether  the  notice  given  in  a  particular  case  was  a 
reasonable  or  sufficient  one,  and  this  does  not  affect  the  validity 
of  the  statute.  The  same  case  reviewing  the  sections  quoted 
which  provide  for  inquest  to  be  held  in  open  court,  in  chambers 
or  at  the  home  of  the  alleged  insane  person,  and  for  the  in- 
quest by  jury,  and  where  same  is  not  demanded  by  commission 
of  two  qualified  physicians,  holds:  "A  court  is  a  place  where 
justice  is  administered  judicially,  and  the  person  authorized 
to  administer  justice  in  a  judicial  capacity  must  be  present. 
The  statute  contemplates  a  hearing,  which  necessitates  the  pres- 
ence of  the  judge,  and  the  presence  of  the  patient  is  indispen- 
sable. The  court  may,  if  not  satisfied  with  the  finding  of  the 
jury  or  commission,  set  the  same  aside  and  dismiss  the  pro- 
ceedings or  order  another  inquest.  If  the  judge  approves  the 
finding  he  may  enter  a  proper  order,  and  the  judgment  entered 

7 — Section  8,  chapter  85,  "Luna-  utes  of  Illinois,  Vol.  2,  p.  2654; 
tics."  As  to  citations,  note  6  and  Kurd's  R.  S.  of  111.,  1905,  p.  1339. 
7.    Starr  &  Curtis  Annotated  Stat-         8—184  111.  98. 


704  THE  LAW  OF  ESTATES. 

is  the  judgment  of  the  court. '"^  Under  the  common  law  of 
England,  the  Lord  Chancellor  by  special  grant  from  the  crown, 
exercised  power  over  the  persons  and  estates  of  lunatics  and 
idiots.  In  theory  of  law,  the  State,  in  its  character  of  parens 
patriae,  rightfully  exercises  the  same  power  and  control  over 
the  persons  and  property  of  lunatics  and  idiots,  that  was  ex- 
ercised by  the  crown  of  England  through  the  Lord  Chancellor 
at  an  early  period,  or  as  it  was  exercised  prior  to  the  fourth 
year  of  the  reign  of  James  the  First.^** 

791.  Interrogatories  in  writing — court  may  set  aside  find- 
ings— record  of  finding.  Section  9,  provides:  "The  jury  or 
commission,  as  the  case  may  be,  shall  furnish  to  the  court  in 
writing  answers  to  such  interrogatories  as  may  be  contained  in 
a  form  to  be  prescribed  by  the  State  Commissioners  of  Public 
Charities,  and  shall  certify  that  the  same  are  correct  to  the 
best  of  their  knowledge  and  belief,  which  interrogatories  shall 
be  submitted  to  the  medical  member  or  members  of  the  jury 
or  commission  by  the  court."  Section  10.  "The  court  may, 
if  not  satisfied  with  the  finding  of  the  jury  or  commission,  set 
the  same  aside  and  dismiss  the  proceedings  or  order  another 
inquest."  Section  11.  "Upon  the  return  of  the  finding  of  the 
jury  or  commission,  the  court  shall  cause  the  same  to  be  re- 
corded at  large,  and  shall  enter  the  proper  order,  in  accordance 
with  the  finding  of  the  jury  or  commission,  for  the  disposition 
of  the  person  alleged  to  be  insane ;  such  order  may  discharge 
the  patient  with  or  without  conditions;  or  remand  him  to  the 
custody  of  his  friends,  or  commit  him  to  some  hospital  or  asy- 
lum for  the  insane,  public  or  private,  within  the  limits  of  the 
State,  or  to  a  county  insane  asylum  or  insane  department  of 
a  county  almshouse,  or  a  department  for  the  insane  in  the 
county  almshouse  in  the  county  where  such  alleged  insane  per- 
son resides.  But  whatever  order  may  be  made  in  the  case 
shall  stand  and  continue  to  be  binding  upon  all  persons  whom 
it  may  concern  until  rescinded,  reversed  or  otherwise  legally 

9— Haynes  v.  Clearlock,  184  111.        10— Dodge  v.  Cole,  97  111.  354. 
98-99. 


COMMITMENT    OF    LUNATICS.  705 

superseded  or  set  aside.  Appeals  shall  be  allowed  to  the  Cir- 
cuit Court  from  any  order  or  judgment  made  or  rendered 
under  this  act  upon  the  appellant  giving  such  bond  and  se- 
curity within  such  time  as  the  court  may  direct.""  In  Neely 
V.  Shephard,^^  it  is  held:  Section  7  of  the  act  on  lunatics,  pro- 
viding that  "in  all  cases  of  inquest  by  jury,  the  jury  shall  con- 
sist of  six  persons"  one  of  whom  must  be  a  physician,  applies 
only  to  the  County  Court,  and  on  appeal  to  the  Circuit  Court 
from  the  County  Court's  judgment  finding  the  respondent  to 
be  a  distracted  person,  the  customary  jury  consisting  of  twelve 
men  should  try  the  case.  Persons  well  acquainted  with  the 
respondent  in  a  lunacy  inquest,  and  whose  opinions  appear  to 
be  founded  upon  the  facts  as  to  his  condition,  may  properly 
be  allowed  to  give  such  opinions,  the  weight  to  be  ^iven  them 
being  a  question  for  the  jury  in  the  Circuit  Court.^^  It  is  also 
held:  Notwithstanding,  the  provisions  of  section  11,  a  writ 
of  error  may  issue  from  the  Appellate  Court  where  the  order 
entered  and  sought  to  be  reviewed  is  void.^* 

792.  Estate  of  insane  person — inquest  in  lunacy — appoint- 
ment of  conservator — filing  record  in  probate  court.  Section  12, 
as  amended  May  14,  1903,  is  as  follows:  "If  any  person  al- 
leged to  be  insane  shall  be  possessed  of  any  estate,  real,  per- 
sonal or  mixed,  it  shall  be  lawful  for  the  person  filing  applica- 
tion for  an  inquest  in  lunacy  in  his  case  to  make  at  the  same 
time  application  for  the  appointment  of  a  conservator  of  such 
alleged  lunatic.  And  if  such  alleged  lunatic  shall  be  adjudged 
insane,  or  it  shall  appear  to  the  court  that  any  person  has  been 
adjudged  insane  by  the  court  without  application  for  a  con- 
servator having  been  made,  and  that  such  lunatic  is  possessed 
of  any  estate,  real,  personal  or  mixed,  and  is  still  insane,  in 
either  case  it  shall  be  lawful  for  the  court,  upon  petition  filed 

11— Sections  9,   10,   chapter  85,  12—190  111.  637. 

"Lunatics."     Starr  &  Curtis  Anno-  13 — Neely   v.   Shephard,  190  III. 

tated  Statutes  of  Illinois,   Vol.   2,  637. 

p.  2654;  Kurd's  R.  S.  of  111.,  1905,  14— Haines  v.  Clearlock,  95  IlL 

p.  1340.  App.  207. 
45 


706  THE  LAW  OF  ESTATES. 

for  the  purpose,  to  make  an  appointment  of  a  conservator  upon 
the  same  judgment  without  further  proceedings,  and  exercise 
in  respect  thereto  all  the  powers  contained  in  an  act  entitled, 
"an  act  to  revise  the  law  in  relation  to  lunatics,  idiots,  drunk- 
ards and  spendthrifts,"  approved  March  26,  1874,  in  force 
July  1,  1874,  and  all  amendments  thereto ;  and  such  conservator 
shall  perform  the  duties  and  incur  the  liabilities  imposed  by 
said  act  upon  conservators  appointed  thereunder:  Provided, 
that  in  any  county  wherein  a  Probate  Court  has  been  or  may 
hereafter  be  established,  upon  the  filing  in  such  court  of  the 
proper  petition,  together  with  the  duly  certified  copy  of  the 
record  and  the  verdict  of  the  jury,  or  the  report  of  the  com- 
mission of  physicians,  and  the  judgment  of  the  County  Court 
thereon  finding  such  person  insane,  such  Probate  Court  may,  in 
its  discretion,  without  further  inquest,  by  jury  or  commission 
of  physicians,  appoint  such  conservator;  and  every  note,  bill, 
bond  or  other  contract  by  any  person  adjudged  insane  under 
the  provisions  of  this  act,  made  after  such  person  has  been 
adjudged  insane  under  this  act,  shall  be  void  as  against  such 
lunatic  and  his  estate,  but  a  person  making  any  contract  with 
such  lunatic  shall  be  bound  thereby.  "^°  A  contract  entered 
into  by  one  personally  before  he  is  adjudged  insane  or  consid- 
ered such,  is  binding  upon  his  estate,  for  in  that  case  insanity 
does  not  relieve  the  estate.^^ 

793.  Jurisdiction  of  persons  not  charged  with  crime — county 
judge  to  keep  separate  docket.  Section  13  of  the  Lunatic  act, 
provides:  "Jurisdiction  over  the  persons  of  insane  persons 
not  charged  with  crime  is  vested  in  the  county  courts."  Sec- 
tion 14.  "Each  county  judge  shall  keep  a  separate  docket  of 
proceedings  in  inquisitions  of  lunacy,  upon  which  shall  be  made 
such  entries  as  will,  together  with  the  papers  filed,  preserve 

15 — Section      12,      chapter      85,  thereto.  Vol.  2,  p.  2655;   Vol.  4,  p. 

"Lunatics."  As  amended  by  act  of  814;   Vol.  5,  p.  372;   Kurd's  R.  S. 

May  14,  1903.     Starr  &  Curtis  An-  of  111.,  1905,  p.  1340. 
notated    Statute    of    Illinois,    with         16 — Sands    v.    Potter,    165    111. 

Jones  &  Addington's  Supplements  404;  Isle  v.  Cranby,  199  111.  47,  48. 


COMMITMENT    OF    LUNATICS.  707 

a  perfect  record  of  each  case.  The  original  statements  and 
application  for  inquest,  writ  and  return  made  thereto,  and  re- 
ports of  commission  and  verdicts  of  juries,  shall  be  filed  with 
the  clerk  of  the  court,  and  a  copy  of  the  finding,  whether  the 
person  alleged  to  be  insane  be  found  to  be  insane  or  sane,  and, 
if  found  to  be  insane,  a  copy  of  the  medical  certificate  shall 
also  be  in  each  case  furnished  to  the  State  Commissioners  of 
Public  Charities."" 

794.  Insane  person  kept  at  expense  of  state.  Section  15. 
"All  insane  persons  admitted  to  any  State  hospital  or  asylum 
for  the  insane  shall  be  maintained  and  treated,  while  in  the 
institution,  at  the  expense  of  the  State,  but  the  cost  of  clothing, 
transportation  and  other  incidental  expenses  not  constituting 
any  part  of  the  maintenance  or  treatment,  shall  be  defrayed  at 
their  own  expense,  or  that  of  the  county  from  which  they 
were  admitted.  "^^ 

795.  Judge  to  inquire  into  pecuniary  condition  of  person 
charged  with  lunacy.  Section  16.  "It  shall  be  the  duty  of  the 
county  judge,  at  the  time  of  each  inquest  in  lunacy,  to  inquire 
into  the  pecuniary  condition  of  the  person  alleged  to  be  insane 
and  that  of  the  relatives  who  are  bound  by  law  to  maintain 
him.  Patients  committed  to  any  State  hospital  or  asylum  for 
the  insane  shall  be  designated  as  private  or  county  patients. 
Private  patients  are  such  as  are  of  sufficient  pecuniary  ability 
to  pay  for  their  own  clothing  and  incidental  expenses  while  in 
the  institution,  and  all  others  shall  be  entered  upon  the  docket 
as  county  patients.  "^^ 

796.  Clerk's  statement  to  superintendent  of  hospital.  Sec- 
tion 17.  "Upon  the  entry  of  an  order  of  commitment  of  any  in- 

17 — Sections  13  and  14,  chapter  tated   Statutes   of  Illinois,  Vol.  2, 

85,    "Lunatics."      Starr    &    Curtis  p.  2655;  Kurd's  R.  S.  of  111.,  IB05, 

Annotated  Statutes  of  Illinois,  Vol.  p.  1341. 

2,   p.   2655;    Kurd's   R.    S.   of   111.,         19— Section      16,      chapter      85, 

1905,  p.  1340.  "Lunatics."     Starr  &  Curtis  Anno- 

18 — Section      15,      chapter      85,  tated   Statutes  of  Illinois,   Vol.   2, 

"Lunatics."  Starr  &  Curtis  Anno-  p.  2655;  Kurd's  R.  S.  of  111.,  1905, 

p.  134L 


708  THE  LAW  OF  ESTATES. 

sane  person  to  a  hospital  for  the  insane,  the  clerk  of  the  County 
Court  shall  send  a  copy  of  the  finding  of  the  jury  or  com- 
mission and  of  the  medical  certificate  provided  for  in  section 
9  of  this  act  to  the  superintendent  of  the  hospital  for  the  insane 
to  which  such  insane  person  is  ordered  to  be  committed,  and 
such  superintendent  shall,  without  delay,  admit  such  insane  per- 
son as  a  patient  in  said  hospital:     Provided,  that  if  there  is 
no  room  in  such  hospital  for  the  admission  of  the  person  com- 
mitted thereto,  and  that  such  county  shall  have  its  full  quota 
of  patients  in  said  hospital,  the  superintendent  thereof  shall 
return  to  said  county  one  quiet,  harmless  chronic  patient,  but 
should  said  coimty  not  have  its  full  quota  of  patients  in  said 
hospital,   the  superintendent   shall  return  one   quiet,  harmless 
chronic  patient  to  any  county  which   may  be   in  excess   of   its 
quota;  and  should  no  county  be  in  excess  of  its  quota,  the  sup- 
erintendent shall  select  the  most  quiet,  harmless  chronic  patient 
in  said  hospital  and  return  him  to  the  coiuity  from  which  he 
was  committed,  in  order  to  make  room  for  the  patient  recently 
adjudged  insane:  Provided,   further,   if  a  hospital  or  asylum 
for  the  chronic  or  incurable  insane  shall  be  established,  such 
chronic  patient  may  be  sent  to  such  hospital  or  asylum  for  the 
chronic  or  incurable  insane:  Provided,  further,  that  in  case  it 
shall  not  be  found  possible  to  admit  such  patient  to  a  State 
hospital  or  asylum  for  the  insane,  the  court  where  such  inquest 
is  had  may  make  such  further  order  in  the  matter  as  may  be 
requisite  and  lawful."'*'     Where  the  State  authorities  required 
the   county  authorities  to   receive   a  patient,   and  the   county 
authorities  did  so  receive  and  for  a  long  time  have  supported 
the  patient  as  shown  by  evidence,  it  is  held,  the  county  is  not 
required  by  law  to  render  that  service  gratuitously.     The  hus- 
band of  the  patient  was  liable  for  support  while  insane  and 
cared  for  by  the  county.     This  rests  on  the  general  duty  of 
the  husband  to  supply  his  wife  with  necessaries.-^     And  the 

20 — Section  17,  chapter  85,  Jones  &  Addington's  Supplements 
"Lunatics."  Starr  &  Curtis  Anno-  thereto.  Vol.  2,  p.  2655;  Vol.  4,  p. 
tated    Statutes    of    Illinois,    with     815;   Vol.  5,  p.  373;   Kurd's  R.  S. 

of  III.,  1905,  p.  1341. 


COMMITMENT    OF    LUNATICS.  709 

authorities  establish  and  settle  the  rule,  "there  can  be  no  rea- 
son why  the  public  should  be  charged  with  the  support  of  a 
person  having  ample  means  for  that  purpose,  and  to  support 
such  as  a  public  charge,  where  such  have  ample  means,  would 
not  be  just."  An  insane  person  having  property  adequate  to 
his  support  is  not  a  pauper,  and  consequently  the  county  is 
not  liable  for  his  support.-^ 

797.  Warrant  of  commitment  in  duplicate — endorsement — 
woman  protected.  Section  18.  "For  the  conveyance  of  any 
patient  to  a  hospital  or  asylum  for  the  insane,  the  clerk  shall 
issue  a  warrant,  in  duplicate,  directed  to  the  sheriff  or  any  suit- 
able person,  preferring  some  relative  of  the  insane  person,  when 
desired,  commanding  him  to  apprehend  such  insane  person  and 
deliver  him  to  the  superintendent.  When  necessary,  the  clerk 
may  authorize  the  employment  of  one  or  more  assistants;  but 
no  female  patient  shall  thus  be  taken  to  the  hospital  or  asylum 
by  any  person  not  her  husband,  father,  brother  or  son,  without 
the  attendance  of  some  female  of  reputable  character  and  ma- 
ture age.  Upon  receiving  the  patient,  the  superintendent  shall 
indorse  upon  the  warrant  his  receipt,  naming  the  person  or  per- 
sons from  whom  the  patient  was  received,  and  one  copy  of  the 
warrant,  so  indorsed,  shall  be  returned  to  the  clerk,  to  be  filed 
with  the  other  papers  relating  to  the  case,  but  the  other  shall 
be  left  with  the  superintendent,  and  the  person  delivering  the 
patient  shall  indorse  thereon  that  he  has  so  delivered  him,  and 
said  duplicate  warrant  shall  be  prima  facie  evidence  of  the  facts 
set  forth  therein  and  in  said  indorsement."-^ 

798.  Private  patient  not  received — except  when.  Section  19. 
"No  private  person  shall  be  received  into  any  State  hospital 
or  asylum  for  the  insane,  imless  at  or  before  the  time  of  his  ad- 

21 — Schelling      v.      County      of  22 — Dandurand     v.     County     of 

Kankakee,  96  111.  App.  434;   Way  Kankakee,  196  111.  540;  City  of  Al- 

V.    Cox,    24    Ala.    337;     Alner    v.  ton  v.  County  of  Madison,  21  111. 

Plummer,    4    Greenl.     (Me.)     258;  114. 

Brookfield  v.   Allen,  6  Mass.   585;  23— Section      18,      chapter      85, 

Goodale  v.  Lawrence,  88  N.  Y.  513.  "Lunatics." 


710  TPIE  LAW  OF  ESTATES. 

mission  there  shall  have  been  filed  with  the  superintendent  a 
bond,  with  two  good  and  sufficient  sureties,  approved  by  the 
county  judge,  executed  to  the  trustees  of  the  institution,  and 
conditioned  that  the  obligors  shall  find  the  patient  in  suitable 
and  sufficient  clothing,  while  he  may  remain  in  the  institution, 
•and  promptly  pay  for  any  articles  of  clothing  furnished  or  other 
necessary  incidental  expenses  incurred  by  the  institution  on 
account  of  said  patient,  and  remove  him  when  required  by  the 
trustees;  and  in  case  of  failure  upon  the  part  of  the  trustees 
to  recover  upon  any  bond  as  approved  by  the  county  judgCj  the 
county  shall  become  liable  to  the  institution  for  the  amount  due 
from  said  obligors."-* 

799.  Communication  with  friends  permitted — when.  Sec- 
tion 20.  "Every  patient  admitted  into  any  public  or  private 
hospital  or  asyliun  for  the  insane  shall  have  all  reasonable  op- 
portunities and  facilities  for  communication  with  his  friends, 
and  shall  be  permitted  to  write  and  send  letters,  provided  they 
contain  nothing  of  an  immoral  or  personally  offensive  charac- 
ter, and  letters  written  by  any  patient  to  any  member  of  the 
board  of  trustees,  or  of  the  State  Commissioners  of  Public 
Charities,  or  to  any  State  or  county  official  shall  be  forwarded 
unopened. '  '^^ 

800.  Restraint  allowed  only  when.  Section  21.  **No  pa- 
tient shall  be  placed  in  restraint  or  seclusion,  in  any  hospital 
or  asylum  for  the  insane  in  this  State,  except  by  the  order  of 
the  physician  in  charge;  all  such  orders  shall  be  entered  upon 
a  record  kept  for  that  purpose,  which  shall  show  the  reason 
for  the  order  in  each  case,  and  which  shall  be  subject  to  inspec- 
tion by  the  State  Commissioners  of  Public  Charities  and  such 
record  shall  at  all  times  be  open  to  public  inspection.  "^^ 

24— Section      19,      chapter      85,  25— Section      20,      chapter      85, 

"Lunatics."    As  to  citations,  notes  "Lunatics." 

23,  24.     See  Starr  &  Curtis  Anno-  26 — Section      21,      chapter      85, 

tated   Statutes   of   Illinois,   Vol.   2,  "Lunatics."     As  to  citations,  notes 

p.  2656;   Kurd's  R.  S.  of  111.,  1905,  25,  26.     See  Starr  &  Curtis  Anno- 

p.  1341.  tated   Statutes   of  Illinois,  Vol.  2, 


COMMITMENT    OF    LUNATICS.  711 

801.  Authority  to  discharge  patients  vested  in  trustees.  Sec- 
tion 22.  "Authority  to  discharge  patients  from  either  of  the 
State  institutions  for  the  insane  is  vested  in  the  trustees,  but 
may  be  delegated,  by  a  formal  vote,  to  the  superintendent,  under 
such  regulations  as  they  may  see  fit  to  adopt.  Discharges  may 
be  made  for  either  of  the  following  causes,  namely:  Because 
the  person  adjudged  to  be  insane  is  not  insane,  or  because  he 
has  recovered  from  the  attack  of  insanity  or  because  he  has  so 
far  improved  as  to  be  capable  of  caring  for  himself,  or  because 
the  friends  of  the  patient  request  his  discharge,  and  in  the 
judgment  of  the  superintendent  no  evil  consequence  is  likely 
to  follow  such  discharge,  or  because  there  is  no  prospect  of 
further  improvement  under  treatment,  and  the  room  occupied 
by  an  incurable  and  harmless  patient  is  needed  for  the  admis- 
sion of  others  who  are  unsafe  to  be  kept  at  large  or  probably 
curable.  Authority  is  also  vested  in  the  trustees  to  release  the 
patients  on  parole  for  any  term  not  exceeding  three  months; 
and,  if  not  returned  to  the  institution  within  that  period,  a  new 
order  of  commitment  from  the  county  judge  shall  be  necessary 
in  order  to  the  readmission  of  any  such  paroled  patient  to  the 
institution:  Provided,  that  the  court  may  make  such  order 
upon  the  old  verdict,  if  satisfied  that  the  patient  in  question 
is  still  insane.  But  no  patient  who  is  violent,  dangerous  or 
more  than  usually  troublesome  or  filthy,  shall  be  discharged 
from  any  State  institution  and  sent  back  to  any  county  farm, 
almshouse  or  insane  department  thereof.  And  no  patient  who 
has  not  recovered  his  reason  or  who  is  charged  with  crime  shall 
be  declared  discharged  until  at  least  ten  days  after  notice  shall 
have  been  given  to  the  judge  of  the  County  Court  having  juris- 
diction in  the  case,  in  order  to  enable  the  said  judge  to  make 
some  proper  order  as  to  the  disposition  of  the  said  patient, 
when  so  discharged,  which  order  shall  be  entered  of  record,  and 
a  copy  thereof  furnished  to  the  superintendent,  and  to  the  State 
Commissioners  of  Public  Charities."-^ 

p.  2656;  Kurd's  R.  S.  of  111.,  1905,         27— Section      22,      chapter      85, 
p.  1342.  "Lunatics." 


712  THE  LAW  OF  ESTATES. 

802.  Not  discharged  without  suitable  clothing  and  money. 

Section  23.  "No  person  shall  be  discharged  from  a  State  hos- 
pital or  asylum  for  the  insane  without  suitable  clothing  and  a 
sum  of  money,  not  exceeding  twenty  dollars,  sufficient  to  de- 
fray his  expenses  home,  which  shall  be  charged  to  the  patient, 
if  a  private  patient,  and  if  a  county  patient,  to  the  county,  and 
collected  as  other  debts  due  the  institution  are  collected."-^ 

803.  Entitled  to  habeas  corpus.  Section  24.  "Every  person 
confined  as  insane  shall  be  entitled  to  the  benefit  of  the  writ  of 
habeas  corpus,  and  the  question  of  sanity  shall  be  decided  at 
the  hearing  and  if  the  judge  shall  decide  that  the  person  is  in- 
sane such  decision  shall  be  no  bar  to  the  issuing  of  the  writ 
a  second  time  whenever  it  shall  be  alleged  that  such  person 
has  been  restored  to  reason;  and  if  said  person  shall  be  ad- 
judged sane,  on  presentation  of  a  certified  copy  of  said  judg- 
ment to  the  County  Court  where  the  inquest  was  had,  such 
court  shall  rescind  and  set  aside  the  judgment  of  insanity.  "^^ 

804.  Discharged — receipt  of  superintendent.  Section  25. 
"Whenever  notice  shall  have  been  given  to  the  judge  of  any 
County  Court  that  any  patient  committed  to  any  hospital  or 
asylum  of  this  State,  under  the  order  of  said  court,  has  been 
discharged  cured^  upon  receipt  of  such  notice  signed  by  the 
superintendent  the  judge  shall  enter  an  order  restoring  the  pa- 
tient in  question  to  all  his  rights  as  a  citizen,  and,  if  a  conserva- 
tor of  his  estate  shall  have  been  appointed,  the  said  conservator 
shall  be  removed.  At  any  time,  subsequent  to  the  discharge  of 
any  patient,  the  judge  of  the  County  Court  may  hear  evidence 
tending  to  show  that  said  patient  has  been  restored  to  reason, 
and,  if  satisfied  of  his  recovery,  may  make  and  enter  a  similar 
order,  and  thereafter  the  said  patient  shall  not  be  liable  to  be 
again  committed  to  any  hospital  or  asylum  for  the  insane  with- 
out a  new  inquest  in  his  case.  "^° 

28 — Section  23,      chapter      85,         30 — Section      25,      chapter      85, 

"Lunatics."  "Lunatics."     As  to  citations,  notes 

29 — Section  24,      chapter      85,     27,  28,  29,  30.     See  Starr  &  Curtis 

"Lunatics."  Annotated  Statutes  of  Illinois,  Vol. 


COMMITMENT    OF    LUNATICS.  713 

805.  Escape — death  of  patient  proceedings.  Section  26. 
*'If  any  patient  shall  escape  from  the  hospital  it  shall  be  the 
duty  of  any  sheriff  or  officer  of  the  peace  in  any  county  in  which 
he  may  be  found  to  apprehend  and  detain  him,  and  to  report 
the  same  to  the  county  judge  of  said  county,  who  shall  return 
him  to  the  institution  at  the  expense  of  the  county  from  which 
he  was  committed."  Section  27,  "In  the  event  of  a  sudden  or 
mysterious  death  of  any  inmate  of  any  public  or  private  hos- 
pital or  asylum  for  the  insane,  a  coroner's  inquest  shall  be  held, 
as  provided  by  law  in  other  cases.  Notice  of  the  death  of  a 
patient  and  the  causes  thereof  shall,  in  all  cases  be  given  to  the 
judge  of  the  court  having  jurisdiction  over  such  patient^  and 
the  fact  of  his  death,  with  the  time,  place  and  aUeged  cause 
shall  be  entered  upon  the  docket.  "^^ 

806.  Conspiracy  to  commit  person  to  hospital  or  asylum — 
penalty.  Section  28.  "Any  person  who  shall  conspire  to  com- 
mit any  person  to  any  hospital  or  asylum  for  the  insane  unlaw- 
fully or  improperly,  or  any  person  who  shall  receive  or  detain 
any  insane  person  contrary  to  the  provisions  af  this  act,  or  any 
person  who  shall  maltreat  any  insane  person,  or  any  person  who 
shall  violate  any  provision  contained  in  this  act,  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  upon  conviction  thereof 
shall  be  fined  not  exceeding  one  thousand  dollars,  or  imprisoned 
not  exceeding  one  year,  or  both,  at  the  discretion  of  the  court 
in  which  such  conviction  is  had."^^ 

807.  Costs  of  proceedings.  Section  29.  "The  costs  of  pro- 
ceedings in  inquests  of  lunacy  in  case  of  county  patients  shall 
be  defrayed  from  the  county  treasury;  but  in  case  of  private 
patients,  if  the  person  alleged  to  be  insane  is  found  to  be  in- 
sane, they  shall  be  paid  by  his  guardian  or  conservator  or  rela- 
tives out  of  his  estate,  as  the  court  may  direct.     In  all  cases 

2,  p    2657;    Kurd's  R.   S.   of  111.,         32— Section     28,      chapter      85, 

1905,  p.  1342.  "Lunatics."      See    Starr    &    Curtis 

31 — Sections  26,  27,  chapter  85,     Annotated     Statutes     of     Illinois, 

"Lunatics."  Vol.   2,   p.   2658;    Kurd's   R.    S.   of 

III.,  1905,  p.  1343. 


714  THE  LAW  OP  ESTATES. 

where  the  person  alleged  to  be  insane  is  found  not  to  be  insane, 
the  court  may,  in  its  discretion,  require  that  the  costs  shall  be 
paid  by  the  person  who  filed  the  statement  provided  for  in  sec- 
tion 3  of  this  act  and  award  judgment  against  him  therefor. 
The  fees  paid  for  jury  service,  attendance  of  witnesses  and  ex- 
ecution of  legal  process  shall  be  the  same  which  are  allowed  by 
law  for  similar  service  in  other  cases.  For  services  as  commis- 
sioner to  make  inquests  in  lunacy  the  sum  of  five  dollars  per 
day  and  the  actual  and  necessary  traveling  expenses  shall  be 
allowed  and  paid  to  each  person  so  employed.  But  when  any 
person  having  a  residence  in  this  State  shall  be  adjudged  to  be 
insane  by  the  County  Court  of  any  county  of  which  he  is  not  a 
resident,  the  judge  of  the  County  Court  in  the  county  in  which 
the  said  person  resides  shall  be  furnished  with  a  transcript  of 
the  record  and  finding  in  the  case,  and  thereupon  the  said 
county  shall  become  liable  for  the  costs  of  proceedings  and  for 
the  cost  of  clothing,  transportation  and  other  incidental  ex- 
penses of  such  patient  while  in  the  institution.  And  when  any 
soldier  or  sailor  in  any  Soldiers'  or  Sailors'  Home  shall  be  de- 
clared insane,  such  soldier  or  sailor  shall  be  received  by  some 
State  hospital.  "2* 

808.  Act  does  not  apply  to  persons  in  custody  on  criminal 
charge — convicts  in  penitentiary  admitted  when — non-resident 
may  be  admitted,  when.  Section  30.  "Nothing  in  this  act  shall 
be  construed  to  apply  to  insane  persons,  or  persons  supposed  to 
be  insane,  who  are  in  custody  on  a  criminal  charge."  Section 
31.  "Insane  convicts  in  the  State  penitentiaries  may  be  com- 
mitted to  the  asylum  for  insane  criminals  without  formal  re- 
quest on  the  certificate  of  the  penitentiary  physician."  Sec- 
tion 32.  "Insane  persons  not  residents  of  this  State  shall  not 
be  detained  in  any  private  institution  for  the  insane  of  this 
State  unless  committed  thereto  in  accordance  with  the  laws  of 
the  State  or  Territory  of  which  they  are  residents,  or  with  the 
laws  of  this  State.  "^^ 

33 — Section  29,  chapter  85,  34 — Section  30,  chapter  85, 
"Lunatics."  "Lunatics."     See    Starr  &   Curtis 


COMMITMENT    OF    LUNATICS.  715 

809.  Administration  and  enforcement  of  laws  entrusted  to 
state  commissioners  of  public  charities.  Section  33.  "The  ad- 
ministration and  enforcement  of  the  laws  relating  to  the  insane 
of  this  State  and  their  treatment,  in  or  out  of  hospitals  or  asy- 
lums for  the  insane,  is  entrusted  to  the  State  Commissioners 
of  Public  Charities,  who  shall  have  power,  from  time  to  time, 
with  the  approval  of  the  Governor  and  Attorney  General,  to 
make  rules  and  regulations  on  the  following  matters,  so  far 
as  the  same  are  not  inconsistent  with  any  laws  of  this  State. 

1.  The  licensing  of  all  houses  or  places  in  which  any  person  can 
be  lawfully  detained  as  insane  or  of  unsound  mind,  and  the 
withdrawal  of  licenses  granted  by  them  for  cause  shown,  with 
the  approval  of  the  Governor  and  Attorney  General.  2.  Regu- 
lation of  the  forms  to  be  observed  relating  to  the  commitment, 
transfer  of  custody  and  discharge  of  lunatics  not  in  conflict 
with  the  provisions  of  this  act.  3.  The  visitation  and  inspec- 
tion of  all  houses  or  places  in  which  any  persons  are  detained 
as  insane  and  of  all  persons  detained  therein.  4.  Reports  and 
information  to  be  furnished  by  the  managers  or  trustees  and 
medical  superintendents  of  all  houses  or  places  subject  to  the 
provisions  of  this  act,  and  by  the  boards  of  auxiliary  visitors 
herein  provided  for.  In  case  it  shall,  in  the  judgment  of  the 
State  Commissioners  of  Public  Charities,  become  necessary  to 
institute  prosecutions  under  this  act,  they  are  hereby  author- 
ized to  call  upon  the  Attorney  General  and  upon  the  State's 
Attorneys  of  the  several  counties  for  any  aid  and  assistance 
which  may  be  requisite,  and  the  said  officers  are  hereby  di- 
rected and  required  to  render  such  assistance  upon  their  appli- 
cation :  Prt>vided,  that  existing  private  institutions  in  this  State 
shall  not  be  amenable  to  prosecution  under  this  act  until  the 
Board  of  State  Commissioners  of  Public  Charities  shall  ha^e 
made  such  rules  and  allowed  thirty  days'  notice  within  which 
to  take  out  license  and  shall  have  decided  upon  the  applica- 
tion. "^^ 

Annotated  Statutes  of  Illinois,  Vol.         35 — Section      33,      chapter      85, 

2,  p.   2658;    Kurd's  R.   S.  of  111.,     "Lunatics." 
1905,  pp.  1342,  1343. 


716  THE  LAW  OF  ESTATES. 

810.  State  commissioners  of  public  charities — powers.  Sec- 
tion 34.  "The  State  Commissioners  of  Public  Charities  shall 
have  power  to  appoint  boards  of  auxiliary  visitors  of  all  county 
almshouses,  jails  and  other  house  or  places  other  than  State  or 
licensed  private  institutions  for  the  care  of  the  insane,  in  which 
any  person  of  unsound  mind  is  or  may  be  detained;  one  such 
board  shall  be  appointed  in  every  county  in  the  State,  to  be 
composed  of  three  persons,  one  of  whom  may  be  a  woman  and 
at  least  one  of  whom  shall  be  a  qualified  physician.  The  com- 
missioners may  remove  said  board  or  any  member  thereof  and 
fill  vacancies;  at  least  once  a  year  members  who  have  failed  to 
act  for  a  year  past  shall  be  removed.  No  compensation  or  al- 
lowance for  expenses  whatever  shall  be  allowed  or  paid  to  such 
visitors.  It  shall  be  the  duty  of  any  and  all  persons  in  charge 
of  each  and  every  almshouse  or  jail,  or  of  any  house  or  place 
within  the  county  in  which  any  person  of  unsound  mind  is  de- 
tained, except  State  and  licensed  private  hospitals  or  asylums 
for  the  care  of  the  insane,  to  admit  any  or  all  of  the  visitors 
appointed  for  said  county,  in  every  part  of  such  institution,  and 
to  render  them  every  facility  within  their  power  to  enable  them 
to  make  in  a  thorough  manner  their  visit,  inspection  and  ex- 
amination, which  are  hereby  declared  to  be  for  •  a  public  pur- 
pose, and  to  be  made  with  a  view  to  the  public  welfare.  The 
boards  herein  authorized  shall  make  such  inspection  and  report 
as  the  State  Commissioners  of  Public  Charities  may  prescribe 
and  require:  Provided,  that  all  State  and  licensed  private  hos- 
pitals or  asylums  for  the  care  of  the  insane  shall  be  visited  by 
the  State  Board  of  Charities  only."'® 

811.  Copies  of  law  to  be  printed  by  commissioner  of  State 
contracts — early  stages  of  insanity — treatment.  Section  36. 
"The  Commissioner  of  State  Contracts  shall  cause  to  be  printed 
in  pamphlet  form  a  sufficient  number  of  copies  of  this  act,  etc., 
for  the  information  of  county  officials  and  of  the  public. ' '    Sec- 

36— Sections  34,  35,  chapter  85,  tated  Statutes  of  Illinois,  Vol.  2, 
"Lunatics."     Starr  &  Curtis  Anno-     pp.  2659,  2660;  Kurd's  R.  S.  of  111., 

1905,  p.  1344. 


COMMITMENT    OF    LUNATICS.  717 

tion  37.  "Any  person  who  may  be  in  the  early  stages  of  in- 
sanity who  may  desire  the  benefit  of  treatment  in  a  State  or 
licensed  private  hospital  for  the  insane  as  a  voluntary  patient, 
may  be  admitted  to  such  hospital  on  his  own  written  applica- 
tion, accompanied  by  a  certificate  from  the  County  Court  of 
the  county  in  which  such  applicant  resides,  stating  that  such 
person  is  a  private  or  county  patient,  as  the  case  may  be,  and 
such  person  shall,  if  admitted  to  a  State  or  licensed  hospital 
for  the  insanCj  have  the  same  standing  as  other  private  or 
county  patients :  Provided,  that  all  voluntary  patients  shall 
have  the  right  to  leave  the  hospital  at  any  time  on  giving  thi'ee 
days'  notice  to  the  superintendent. "^'^ 

812.  Acquittal  of  crime  on  plea  of  insanity — proceedings. 

Section  38.  "In  all  cases  where  any  person  is  sent  to  a  State 
hospital  for  the  insane,  being  acquitted  of  crime  on  the  plea 
of  insanity,  or  being  under  indictment  for  crime,  the  State's 
Attorney  in  charge  of  the  case  shall  officially  notify  the  super- 
intendent of  the  hospital  to  which  the  accused  is  sent,  of  any 
indictment  pending  against  such  person,  or  of  the  fact  that  the 
accused  has  been  acquitted  of  his  crime,  on  the  plea  of  insanity, 
and  it  shall  be  the  duty  of  the  superintendent  so  notified,  in 
case  such  superintendent  shall  at  any  time  discharge  the  ac- 
cused, to  officially  notify  the  State's  Attorney  of  the  fact  of 
such  discharge  and  the  reasons  therefor.  "^^ 

813.  Repeal.  Section  39.  All  acts  and  parts  of  acts  incon- 
sistent herewith  are  hereby  repealed,  also  act  of  March  21,  1874, 
and  amendatory  act  of  June  15,  1887.^^ 

814.  Superintendent  to  furnish  clerk   with  list — penalty. 

Paragraphs  40  and  41,  sections  1  and  2,  act  of  1887,  approved 
June  8,  1887.     "That  each  superintendent  of  any  hospital  for 

37 — Sections  36,  37,  chapter  85,  "Lunatics."  See  as  to  notes  37,  38, 
"Lunatics."  39.      Starr    &    Curtis    Annotated 

38 — Section  38,  chapter  85,  Statutes  of  Illinois,  Vol.  2,  p. 
"Lunatics."  2660;  Kurd's  R.  S.  of  111.,  1905,  pp. 

39— Section      40,      chapter  85,     1344,  1345. 


718  THE  LAW  OF  ESTATES. 

the  insane  in  this  State,  shall  hereafter,  on  the  first  day  of 
January  and  July  of  each  year,  furnish  the  clerk  of  the  county 
court  of  the  proper  county  thereof,  with  a  full  and  complete 
list  of  all  insane  patients  confined  in  said  hospital  from  said 
county,  stating  the  date  of  admission  of  each,  whether  said 
patients  be  paupers,  the  present  mental  and  physical  condition  of 
each;  also  giving  the  names  of  such  as  may  have  died  or  been 
discharged  since  last  report,  with  date  of  such  death  or  dis- 
charge."  Any  such  superintendent  failing  to  comply  with  the 
foregoing  section  shall  be  liable  to  a  fine  of  one  hundred  dollars 
for  each  failure,  to  be  collected  by  suit,  before  a  justice  of  the 
peace  of  the  county  wherein  such  hospital  is  situate,  on  com- 
plaint of  such  clerk  of  the  County  Court,  or  other  person  hav- 
ing relatives  or  friends  confined  in  said  hospital."*" 

40 — Paragraphs  40,  41,  sections    1  and   2,   chapter  85,   "Lunatics." 
Kurd's  R.  S.  of  111.,  1905,  p.  1345. 


CHAPTER  XLVI 

INVESTMENT    OF    MONEY,  LEASING,  MORTGAGING    AND 
SELLING  REAL  ESTATE  BY  CONSERVATORS 


Sec, 

815.  Investment  of  money. 

816.  Leasing  and  mortgaging  real 

estate. 

817.  Petition  to  mortgage. 

818.  Conservator's  sale  of  real  es- 

tate; petition,  notice,  docket, 
practice,  order  of  sale. 

819.  Presumption  of  jurisdiction. 

820.  No   collateral   attack   on   rec- 

ord, when. 

821.  Powers   conferred   by   statute 

upon  the  court. 

822.  Return  of  sale,  approval,  rec- 

ord, title,  proceeds  of  sale. 


Sec. 

823.  Sufficiency  of  sureties.     How 

protected. 

824.  Removal  of  conservator;  sum- 

mons to  show  cause;  notice. 

825.  Resignation     of    conservator; 

successor;   delivery  to  same. 

826.  Non-resident  ward;  powers  of 

conservator. 

827.  Sale   of   real   estate  of    such 

ward. 

828.  Notice,  petition;   sale  of  non- 

resident wards'  real  estate. 

829.  Bond  for  faithful  application 

of  money  for  costs. 


Sec.  815.  Investments  of  money.  *'It  shall  be  the  duty  of 
the  conservator  to  put  and  keep  his  ward's  money  at  interest, 
upon  security  to  be  approved  by  the  court,  or  invest  the  same 
in  United  States  bonds  or  other  United  States  interest  bearing 
securities.  Personal  security  may  be  taken  for  loans  not  ex- 
ceeding $100,  Loans  in  larger  amounts  shall  be  upon  real 
estate  security.  No  loan  shall  be  made  for  a  longer  time  than 
three  years,  unless  authorized  by  the  court:  Provided,  the 
same  may  be  extended  from  year  to  year,  without  the  approval 
of  the  court.  "^ 

816.  Leasing  and  mortgaging  real  estate.  ''The  conserva- 
tor may  lease  the  real  estate  of  the  ward,  upon  such  terms  and 

1— Section  18,  chapter  86,  Vol,  2,  p.  2667;  Kurd's  R,  S.  of 
"Lunatics,"  etc,  Starr  &  Curtis  111.,  1905,  p,  1348.  See  also  Wing 
Annotated     Statutes     of     Illinois,     v.  Dodge,  80  111.,  564;  In  re  Hall, 

19  111.  App,  295. 

719 


720  THE  LAW  OF  ESTATES. 

for  such  length  of  time  as  the  County  Court  shall  approve." 
Section  19.  "The  conservator  may  by  leave  of  the  County 
Court,  mortgage  the  real  estate  of  the  ward  for  a  term  of  years, 
or  in  fee."^ 

817.  Petition  to  mortgage.  Section  21.  "Before  any  mort- 
gage shall  be  made,  the  conservator  shall  petition  the  County 
Court  for  an  order  authorizing  such  mortgage  to  be  made,  in 
which  petition  shall  be  set  out  the  condition  of  the  estate  and 
the  facts  and  circumstances  on  which  the  petition  is  founded, 
and  a  description  of  the  premises  sought  to  be  mortgaged." 
Section  22.  "No  decree  of  strict  foreclosure  shall  be  made 
upon  any  such  mortgage,  but  redemption  shall  be  allowed,  as 
is  now  provided  by  law  in  cases  of  sales  under  executions  upon 
common  law  judgments."^ 

818.  Conservator's  sale  of  real  estate — petition — notice — 
docket — practice — order  for  sale.  Section  23  of  Chapter  86, 
provides:  "On  the  petition  of  the  conservator,  the  County 
Court  of  the  county  where  the  ward  resides,  or  if  the 
ward  does  not  reside  in  the  State,  of  the  county  where  the 
real  estate  or  some  part  of  it  is  situated,  may  order  the  sale  of 
the  real  estate  of  the  ward  for  his  support  and  that  of  his  fam- 
ily when  the  court  shall  deem  it  necessary,  or  to  invest  the  pro- 
ceeds in  other  real  estate,  or  for  the  purpose  of  otherwise  in- 
vesting the  same,  or  for  the  purpose  of  paying  the  debts  of  the 
ward  or  the  education  of  the  children  of  said  ward."  Section 
24.  "The  petition  shall  set  forth  the  condition  of  the  estate 
and  the  facts  and  circumstances  on  which  the  petition  is 
founded,  and  shall  be  signed  by  the  conservator  and  verified  by 
his  affidavit,  and  shall  be  filed  at  least  ten  days  before  the  com- 
mencement of  the  term  of  court  at  which  the  application  shall 
be  made."     Section  25.     "Notice  of  such  application  shall  be 


2 — Sections  19   and   20,   chapter     86,  "Lunatics,"  etc.     Starr  &  Cur- 

86,  "Lunatics,"  etc.  tis  Annotated  Statutes  of  Illinois, 

3— Sections   21   and   22,   chapter     Vol.  2,  p.  2667;  Kurd's  R.  S.  of  III., 

1905,   p.    1348. 


INVESTMENT  OF  MONEY,  ETC.  721 

given  to  all  persons  concerned  by  publication  in  some  newspaper 
published  in  the  county  where  the  application  is  made,  at  least 
once  in  each  week  for  three  successive  weeks  or  if  no  newspaper 
is  published  in  such  county  by  setting  up  written  or  printed 
notices  in  three  of  the  most  public  places  in  the  county  at  least 
three  weeks  before  the  session  of  the  court  at  which  such  appli- 
cation shall  be  made.  The  ward  shall  be  served  with  a  copy  of 
such  notice  at  least  ten  days  before  the  hearing  of  such  applica- 
tion. Such  service  may  be  proved  in  the  same  manner  as  the 
service  of  a  copy  of  a  bill  in  chancery."  Section  26.  "Such 
application  shall  be  docketed  as  other  causes,  and  the  petition 
may  be  amended,  heard  or  continued  for  further  notice  or  for 
other  cause.  The  practice  in  such  cases  shall  be  the  same  as  in 
other  cases  in  chancery."  Section  27.  "The  court  shall  direct 
notice  of  the  time  and  place  of  sale  to  be  given,  and  may  direct 
the  sale  to  be  made  on  reasonable  credit,  and  require  such  se- 
curity of  the  conservator  or  purchaser  as  the  interest  of  the 
ward  may  require."'* 

819.  Presumption  of  jurisdiction.  The  presumption  is  in 
favor  of  the  jurisdiction  of  a  court  of  general  jurisdiction, 
without  the  facts  appearing  in  the  record;  on  the  other  hand, 
there  is  no  presumption  in  favor  of  the  judgment  of  a  court 
of  inferior  and  limited  jurisdiction;  but  the  facts  must  appear 
in  the  record,  showing  the  jurisdiction.  The  rule  is  well  set- 
tled as  applying  to  courts  of  limited  jurisdiction,  that  the  court, 
to  acquire  jurisdiction  of  the  parties,  has  only  to  have  them 
before  it,  and  whether  by  legal  notice,  by  service,  or  voluntary 
appearance,  does  not  matter.  And  where  the  record  shows,  or 
the  court  finds  this  jurisdictional  fact  the  record  cannot  be 
contradicted  or  questioned  in  a  collateral  proceeding.  It  is 
true,  that  if,  by  an  inspection  of  the  whole  record,  it  is  seen  that 

4 — Sections   23,   24,   25   and   26,  ences  made  by  Starr  &  Curtis  on 

chapter  86,  "Lunatics,"  etc.     Starr  page  2668  of  Vol.  2;  Searle  v.  Gal- 

&    Curtis    Annotated    Statutes    of  braith,  73  III.  269;  Wing  v.  Dodge, 

Illinois.    Vol.    2,    pp.    2667,    2668;  80  111.  564;   Dodge  v.  Cole,  97  111. 

Huvd's  R.  S.  of  111.,  1905,  p.  1348.  338;    Gardner  v.   Maroney,   95   111. 

See    also    statutory    cross    refer-  552. 
46 


722  THE  LAW  OF  ESTATES. 

there  could  not  have  been  jurisdiction  of  the  person,  then  the 
prima  facie  case  would  be  overcome.  But  where  the  court  has 
adjudged  that  there  was  jurisdiction  of  the  person,  the  court 
on  review  will  not  look  beyond  the  record,  or  receive  evidence 
outside  of  it,  to  disprove  the  finding.  In  this  respect  the  ques- 
tion can  only  be  tried  by  the  record.^ 

820.  No  collateral  attack  on  record  when.  When  the  order 
or  decree  shows,  and  the  court  finds  jurisdictional  facts,  the 
proceedings  for  sale  of  real  estate  by  a  conservator  cannot  be 
contradicted  or  questioned  in  a  collateral  proceeding.  Where 
a  decree  recited  that  the  County  Court  had  appointed  a  con- 
servator for  the  defendant,  and  that  the  latter  had  been  ascer- 
tained by  a  jury,  according  to  the  form  of  the  statute,  to  be  an 
insane  person,  it  was  held,  that  he  could  not  be  allowed  to  con- 
tradict the  finding  of  the  decree,  so  far  as  it  related  to  the  ap- 
pointment of  a  conservator;*^  and  this  doctrine  was  upheld  and 
applied  in  analogous  cases. 

821.  Powers  conferred  by  statute  upon  the  court.  Those 
conferred  by  the  act  in  question  under  sections  23,  24,  25,  26, 
27.''  And  when  it  is  deemed  necessary  by  the  court  in  proceed- 
ings for  conservators'  sales,  it  is  competent  for  the  court  to  au- 
thorize lands  surveyed,  platted  and  subdivided.®  And  in  such 
proceeding  the  court  may  assign  dower  and  homestead.®  The 
notice  of  such  proceedings  must  be  given  as  required  by  statute 
strictly.^"  But  it  is  held  sufficient  in  case  of  application  for 
sale  by  non-resident  guardian,  if  notice  is  published  in  daily  pa- 

5 — Osgood  V.  Blackmore,  59  111.  Osgood  v.  Blackmore,  59  111.  265; 

264;  Jackson  v.  Spink,  59  111.  409;  Wing  v.  Dodge,  80  111.  564;  Dodge 

Kinney    v.    Knoebel,    47    111.    417;  v.  Cole,  97  111.  338. 
McCormick    v.    Wheeler,    36    111.  7 — For  statute  citation  see  Ante 

114;   Hamilton  v.  Lubukee,  51  111.  818. 

415;    Griffith   v.   Bogert,    18   How.        8— Section      11,      chapter      109, 

U.  S.  158;  Krieger  v.  Krieger,  221  "Plats."    Ante  739. 
111.  479.  9 — Section      44,      chapter      41, 

6_Searle   v.    Galbraith,    73    III.  "Dower."    Ante  630. 
269;    Fitzgibbon   v.    Lake,    29   111.        10— Section      25,      chapter      86. 

165;    Gondy   v.   Hall,   30   111.   109;  Ante  818. 


INVESTMENT  OF  MONEY,  ETC.  723 

per,  three  insertions  in  each  successive  week,  the  first  time  not 
less  than  thirty  days  before  presentation  of  the  petition  of  the 
time  and  place,  requesting  all  interested  parties  to  show  cause 
why  prayer  of  petition  should  not  be  granted.^^ 

822.  Return  of  sale — approval — ^record — title^ — proceeds  of 
sale.  Section  28,  provides :  "It  shall  be  the  duty  of  the  con- 
servator making  such  sale,  as  soon  as  may  be,  to  make  return  of 
such  sale  to  the  court  granting  the  order,  which,  if  approved, 
shall  be  recorded,  and  shall  vest  in  the  purchaser  or  purchasers 
all  the  interest  of  the  ward  in  the  estate  so  sold."  Section  29 
provides :  ' '  An  account  of  all  moneys  and  securities  received  by 
any  conservator  for  the  sale  of  real  estate  of  his  ward  shall  be 
returned  on  oath  of  such  conservator  to  the  County  Court  of  the 
county  where  letters  of  conservatorship  were  obtained,  and  such 
money  shall  be  accounted  for  and  subject  to  the  order  of  the 
County  Court  in  like  manner  as  other  moneys  belonging  to  such 
ward.  In  case  of  sale  for  reinvestment  in  this  State,  the  money 
shall  be  reinvested  under  the  direction  of  the  court. '  '^-  When  the 
sale  is  fairly  made  by  the  guardian  through  an  agent,  and  for  a 
good  price,  it  will  not  be  set  aside  because  the  guardian  was  ab- 
sent, and  where  the  guardian  adopts  the  act  of  the  agent.  If  the 
crier  of  a  judicial  sale  of  real  estate  on  behalf  of  the  guardian 
of  an  insane  person  states  publicly,  at  the  sale,  that  the  guard- 
ian will  pay  certain  assessments  on  the  property,  which  is  not 
done,  this  will  furnish  no  ground  to  set  aside  the  sale  by  the 
purchaser,  or  furnish  any  grounds  of  equitable  relief.  His  rem- 
edy, if  any,  is  at  law,  for  a  failure  of  consideration,  when  sued 
on  his  notes  for  the  purchase  money."  The  following  rule  is 
laid  in  the  case  of  Dodge  Conservator  v.  Cole.^*  In  every  suit 
claiming  a  right  when  it  is  denied,  it  is  the  duty  of  the  court  to 
ascertain  in  the  first  place  whether  the  fact  or  combination  of 

11— Wing  V.  Dodge,  80  111.  56i;  Annotated  Statutes  cf  Illinois, 
Ante  737,  738.  Vol.  2,  p.  2669;    Kurd's  R.   S.  of 

12— Sections  28,  29,  chapter  86,     111.,  1905,  p.  1348. 
"Lunatics,"   etc.      Starr   &   Curtis        13— Wing  v.  Dodge,  80  III.  564. 

14—97  111.  338. 


724  THE  LAW  OF  ESTATES. 

facts  exists  upon  which  the  right  depends  and  in  the  next  place, 
to  determine  whether  the  law,  as  applicable  to  the  facts  found, 
gives  the  right  claimed,  and  the  performance  of  those  duties  is 
the  exercise  of  judicial  power.  The  fact  that  no  precedent  can 
be  found  in  which  relief  has  been  granted  under  a  similar  state 
of  facts  is  no  reason  for  refusing  it/^  Judicial  sales  are  not 
within  the  Statute  of  Frauds,  and  are  binding  upon  the  bidder 
or  purchaser  without  any  written  contract  or  memorandum  of 
sale  signed  by  him  or  his  agent.  ^"^  Where  a  bidder  at  a  con- 
servator's sale  had  notice  of  a  reservation,  made  by  the  con- 
servator, of  the  amount  of  a  judgment  for  damages  for  a  part 
of  the  land  taken  for  the  opening  of  a  highway,  a  question 
of  fact  is  to  be  determined  from  the  evidence.  The  purchaser  at 
a  conservator's  sale  has  a  right  to  appear  before  the  court  and 
object  to  the  report  of  sale  if  any  statements  therein  are  deemed 
by  him  incorrect,  and  if  he  does  not  do  so  he  is  bound  by  the 
decree  approving  the  sale.^' 

823.  Sufficiency  of  sureties — ^how  protected.  Section  30, 
provides:  "It  shall  be  the  duty  of  the  County  Court,  at  each 
accounting  of  the  conservator,  to  inquire  into  the  sufficiency  of 
his  sureties,  and  if  at  any  time  it  has  cause  to  believe  that  the 
sureties  of  a  conservator  are  insufficient  or  in  failing  circum- 
stances, it  shall,  after  summoning  the  conservator,  if  he  be  not 
before  the  court,  require  him  to  give  additional  security."  Sec- 
tion 31.  "Upon  the  application  of  the  surety  of  any  conserva- 
tor, and  after  summoning  the  conservator,  the  court  may,  if  it 
believes  him  to  be  insolvent  or  in  doubtful  circumstances,  re- 
quire him  to  give  counter  security  to  his  sureties.  "^^ 

15 — Curtis  V.  Brown,  29  111.  201;  and   cases  cited   under  section  of 

Voris  V.  Sloan,  68  111.  588.  statute  in  question;   Kurd's  R.  S. 

16— Chandler  v.  Morey,  195  111.  of  111.,  1905,  p.  1102. 
606;   6  Ballard  on  Real  Property,         17 — Chandler  v.  Morey,  195   111. 

sec.   850;    Robertson  v.   Smith,   94  606;    Woerner's   Am.   Law   of   Ad- 

Va.    250;    Andrews   v.   O'Mahoney,  ministration,  Vol.  2,  2d  ed.,  marg., 

112  N.  Y.,  567;  see  also  section  2,  p.  1057;  Overdeer  v.  Updegraff,  69 

chapter     59,     "Frauds     and    Per-  Pa.  St.  110;  Dodge  v.  Cole,  97  111. 

Juries."    Starr  &  Curtis  Annotated  338. 
Statutes  of  Illinois,  Vol.  2,  p.  1997,        18— Sections  30,  31,  chapter  86, 


INVESTMENT  OF  MONEY,  ETC.  725 

824.  Removal  of  conservator — summons  to  show  cause — no- 
tice. Section  32.  "The  county  court  may  remove  a  conserva- 
tor for  his  failure  to  give  bond  or  security  or  additional  or 
counter  security  when  required,  or  for  failure  to  make  inven- 
tory or  to  account  and  make  settlement,  or  support  the  ward, 
or  when  he  shall  have  become  insane,  or  have  removed  out  of 
the  State,  or  become  incapable  or  unsuitable  for  the  discharge 
of  his  duties,  or  for  failure  to  discharge  any  duty  required  of 
him  by  law  or  the  order  of  the  court,  or  for  other  good  cause. '  * 
Section  33.  "Before  removing  a  conservator  the  court  shall 
summon  him  to  show  cause  why  he  should  not  be  removed  for 
the  causes  alleged.  If  the  conservator  has  left  the  State  or 
cannot  be  served  with  process,  he  may  be  notified  in  the  same 
manner  as  non-resident  defendants  in  chancery.  "^^ 

825.  Resignation  of  conservator — successor  appointed — de- 
livery to  same.  Section  34.  "When  it  appears  proper  the 
court  may  permit  the  conservator  to  resign  his  trust,  if  he  first 
settles  his  accounts  and  delivers  over  the  estate  as  by  the  court 
directed."  Section  35.  "Upon  the  removal,  resignation  or 
death  of  a  conservator,  another  may  be  appointed,  who  shall 
give  bond  and  security,  and  perform  the  duties  prescribed  by 
this  Act.  The  court  shall  have  power  to  compel  the  conserva- 
tor so  removed  or  resigned,  or  the  executor  or  administrator  of 
a  deceased  conservator  to  deliver  up  to  such  successor  all  the 
goods,  chattels,  moneys,  title  papers  and  other  effects  in  his 
custody  or  control  belonging  to  the  ward;  and  upon  failure  to 
so  deliver  the  same,  to  commit  the  person  offending  to  jail  until 
he  shall  comply  with  the  order  of  the  court."-" 

826.  Non-resident  ward — powers  of  conservator.  Section  41 
provides:     "The  conservator,  guardian,  curator  or  committee 

"Lunatics,"   etc.     Starr   &   Curtis        20 — Sections  34  and  35,  chapter 

Annotated     Statutes     of     Illinois,  S6,  "Lunatics,"  etc.     Starr  &  Cur- 

Vol.  2,  p.  2669;    Kurd's  R.  S,   of  tis  Annotated  Statutes  of  Illinois, 

111.,  1905,  p.  1349.  Vol.   2,  pp.  2669,  2670;   Kurd's  R- 

19— Sections  32  and  33,  chapter  S.  of  111.,  1905,  p.  1349. 
86,  "Lunatics,"  etc. 


726  THE  LAW  OF  ESTATES. 

of  any  non-resident,  idiot,  lunatic,  insane  or  distracted  person, 
spendthrift  or  drunkard,  appointed  in  any  of  the  United  States 
or  Territories,  or  any  foreign  country,  in  pursuance  of  the  laws 
of  any  such  State,  Territory  or  country,  may  commence  and 
prosecute  in  his  name  as  such  conservator,  guardian,  curator 
or  committee,  suits  for  the  recovery  of  any  real  or  personal 
property,  or  any  interest  therein  in  this  State,  belonging  to  any 
such  idiot,  lunatic,  insane  or  distracted  person,  spendthrift  or 
drunkard,  or  for  any  injury  to  such  property,  in  any  of  the 
courts  of  record  in  this  State  having  jurisdiction  in  similar 
cases  by  persons  in  their  own.  rights,  and  may  collect,  receive 
and  remove  to  his  place  of  residence  any  personal  estate  of  his 
ward.  "^^  When  application  is  made  by  a  non-resident  con- 
servator or  guardian  of  an  insane  person,  the  law  does  not 
require  the  petition  to  state  the  purposes  for  which  the  property 
is  to  be  sold.  It  seems  sufficient  to  confer  jurisdiction  for  the 
petition  to  show  that  the  court  of  the  State  where  the  con- 
servator resides  has  required  the  sale,  without  reference  to  the 
application  of  the  proceeds.  And  where  the  statute  of  Massa- 
chusetts authorizes  the  Probate  Court  to  appoint  a  married 
woman  guardian  of  an  insane  person,  without  the  concurrence 
of  her  husband,  and  the  court  appoints  the  wife  of  an  insane 
person  as  his  guardian,  her  acts  will  be  legal  and  binding, 
whether  the  statute  contemplates  such  an  appointment  or  not.-^ 
By  comity  existing  between  the  States,  a  foreign  guardian  of 
an  insane  person  may  sue  in  this  State  in  his  representative 
capacity.^^  "Where  the  insane  person  was  a  resident  of  the 
State  of  Kansas,  and  the  defendant  in  error  was  his  conservator 
by  virtue  of  an  appointment  made  by  the  Probate  Court  of 
Republic  county,  Kansas,  the  bill  styled  the  complainant 
therein,  "Isaac  McClun,  by  C.  G.  Bulkley,  conservator  and 
guardian."    It  was  held  that  section  41  of  chapter  86  of  the 

21 — Section     41,     chapter      86,  4,  p.  817,  and  cases  cited;  Kurd's 

"Lunatics,"    etc.      Starr    &   Curtis  R.  S.  of  111.,  p.  1350. 

Annotated     Statutes     of     Illinois,  22— Wing  v.  Dodge,  80  111.  564. 

with  Jones  &  Addington's  Supple-  23 — Campbell   v.   Millar,    84    111. 

ments  thereto.  Vol.  2.  p.  2671;  Vol.  App.  215. 


INVESTMENT  OF  MONEY,  ETC.  727 

Hevised  Statutes,  entitled  ''Lunatics,"  etc.,  authorizes  suits  in 
"behalf  of  non-resident  insane  persons  to  be  prosecuted  in  the 
name  of  the  conservator  of  such  insane  person,  and  for  the 
reason  the  complainant  in  this  bill  was  not  so  styled  the  defend- 
ants thereto  moved  the  court  to  dismiss  the  suit  for  want  of 
jurisdiction.  The  court  granted  a  cross-motion  to  amend  the 
bill  so  as  to  make  "C.  G.  Bulkley,  conservator  and  guardian 
of  said  Isaac  McClun,  an  insane  person,"  a  co-complainant  in 
the  bill,  and  such  amendment  being  made,  denied  the  motion 
to  dismiss.  Section  24  of  chapter  110,  entitled  "Practice," 
authorized  the  amendment  introducing  the  conservator  as  a 
party  complainant  in  his  own  name.  Retaining  the  insane  per- 
son by  the  said  conservator  as  a  party  was  but  an  irregularity — 
not  an  error  of  reversible  character.^* 

827.    Sale  of  real  estate  of  such  ward.    Section  42  of  the 

"Lunatic"  Act,  aforesaid,  provides:  "It  shall  be  lawful  for 
any  such  conservator,  guardian,  curator  or  committee  of  any 
non-resident  idiot,  lunatic,  insane  or  distracted  person,  spend- 
thrift or  drunkard,  who  shall  obtain  an  order  from  the  proper 
court  in  the  State,  Territory  or  country  in  which  such  conserva- 
tor, guardian,  curator  or  committee  was  appointed,  authorizing 
him  to  make  application  for  the  sale  of  his  ward's  real  estate 
or  personal  property  in  this  State,  upon  filing  a  certified  copy 
of  such  order  for  record  in  the  office  of  the  clerk  of  the  Circuit 
Court  in  the  county  in  this  State  in  which  the  property  or  the 
major  part  thereof  is  situated,  by  petition  to  such  court  to 
obtain  an  order  authorizing  such  conservator,  guardian,  curator 
or  committee  to  sell  and  transfer  any  such  property  or  interest 
therein,  belonging  to  any  such  idiot,  lunatic,  insane  or  distracted 
person,  spendthrift  or  drunkard,  and  to  make  deeds  and  con- 
veyances thereof;  which  deeds  and  conveyances  executed  and 
acknowledged  in  pursuance  to  the  laws  of  this  State,  or  of  the 
State,  Territory  or  country  in  which  such  conservator,  guardian, 
curator  or  committee  was  appointed,  shall  be  effectual  in  law 
and  equity  to  pass  to  the  grantee  or  grantees  therein  all  the 

24— MoClun  v.  McClun,   176   111.     378. 


728  THE  LAW  OF  ESTATES. 

right,  title  and  interest  of  such  idiot,  lunatic,  insane  or  dis- 
tracted person,  spendthrift  or  drunkard  therein.  The  court 
ordering  the  sale  may  authorize  any  person  to  act  as  auctioneer 
of  the  property,  but  the  deed  shall  be  executed  by  the  conserva- 
tor, guardian,  curator  or  committee.  "^^ 

828.  Sale  of  real  estate  of  non-resident  ward — notice — peti- 
tion. Section  43,  of  the  Lunatic  Act  provides:  "Notice  of  the 
time  and  place  of  presenting  said  petition  to  said  Circuit  Court 
shall  be  given  by  publication  in  the  nearest  newspaper  for  four 
successive  weekSj  the  first  of  which  publications  shall  be  at  least 
forty  days  before  the  time  fixed  for  the  presentation  of  said 
petition,  requesting  all  persons  interested  to  show  cause  why 
the  prayer  of  said  petition  should  not  be  granted.  "^^  And  it 
was  held  where  the  publication  was  not  strictly  in  accordance 
with  the  statute,  it  was  considered  sufficient. 

829.  Bond  for  faithful  application  of  money,  and  for  costs. 

Section  44  of  the  Lunatic  Act  provides:  "The  said  Circuit 
Court  may,  in  its  discretion,  require  such  conservator,  curator,, 
guardian  or  committee  to  file  a  bond,  with  sufficient  securities^ 
conditioned  for  the  faithful  application  of  the  money  which 
may  be  received  from  any  such  property,  for  the  benefit,  and 
to  the  use  of  such  idiot,  lunatic,  insane  or  distracted  person, 
spendthrift  or  drunkard."  Section  45.  "In  all  suits  by  non- 
resident conservatorSj  guardians,  curators  or  committees  they 
shall  give  a  bond  for  costs  as  in  cases  of  other  non-residents."^^ 

25— Section     42,      chapter     86,  26— Section     43,     Chapter     86, 

"Lunatics,"  etc.     Part   of  law   of  "Lunatics,"  etc.;   Wing  v.  Dodge, 

1865,  rewritten  in  act  of  1874,  ex-  80  111.  564. 

tended   to  conservators  appointed  27 — Sections  44,  45,  chapter  86, 

in  foreign  country,  etc.     Starr  &  "Lunatics,"    etc.      Starr   &   Curtis 

Curtis  Annotated  Statutes  of  Illi-  Annotated     Statutes     of     Illinois, 

nois.  Vol.  2,  p.  2671;  Kurd's  R.  S.  Vol.   2,   p.   2672;    Kurd's  R.   S.   of 

of    111.,    1905,    p.    1350.      See    also  111.,  1905,  p.  1350.     See  section  1, 

Wing  V.  Dodge,  80  111.  564;  Camp-  chapter  33,  "Costs."     Kurd's  Stat- 

bell   V.   Millar,    84    111.    App.    215;  utes,    1905,    p.    554.      Morgan    v. 

McClun  V.  McClun,  176  111.  378.  Hoyt,  69  111.  489. 


CHAPTER  XLVII 


RESTORATION  OF  REASON  OF  INSANE 


Sec. 

830.  Restoration  of  reason;   notice 

to  conservator. 

831.  Trial,  judgment,  settlement  of 

accounts. 


Sec. 

832.  Appeals. 

833.  Compensation 

tors. 


of     conserra- 


Sec.  830.    Restoration  of  reason — notice  to  conservator.    The 

Statute  of  Illinois  relating  to  lunatics,  etc.,  provides:  "When 
any  person,  for  whom  a  conservator  has  been  or  may  be  ap- 
pointed under  the  provisions  of  this  Act,  shall  be  restored  to 
his  reason,  or  in  case  such  drunkard  or  spendthrift  shall  have 
become  so  reformed  as  to  be  a  proper  and  safe  person  to  have 
the  care  and  management  of  his  estate,  such  person  may  apply 
to  the  County  Court  of  the  county  in  which  such  conservator 
was  appointed,  to  have  said  conservator  removed,  and  the  care 
and  management  of  his  property,  or  so  much  thereof  as  shall 
remain,  restored  to  him."  Section  38.  "Notice  of  such  in- 
tended application  shall  be  given  to  the  conservator  ten  days 
before  the  commencement  of  the  term  of  the  court  to  which  the 
application  shall  be  made."^  Where  the  Circuit  Court  of  Han- 
cock county,  Illinois,  on  notice,  petition  and  proofs,  declared  a 
certain  person  a  lunatic,  and  appointed  a  conservator  of  the 
property  and  effects  of  such  on  the  verdict  of  the  jury  selected 
for  such  purpose,  and  continued  the  cause,  the  conservator  so 
appointed,  from  time  to  time,  made  report  of  his  acts  and  doings 
to  the  court  appointing  him;  about  three  years  after  such  pro- 
ceeding, the  party  adjudged  insane  filed  his  petition  in  that 


1— Sections    37-38,    chapter    86, 
"Lunatics,"    etc.     Starr   &   Curtis 


Annotated  Statutes  of  Illinois,  Vol. 
2,  p.  2670;  Kurd's  R.  S.  of  111., 
1905,  p.  1349. 

729 


730  THE  LAW  OF  ESTATES. 

court,  alleging  he  was  sane,  and  praying  that  a  jury  be  em- 
panelled to  try  the  question  of  his  sanity  and  capacity  to  man- 
age his  business  affairs;  and,  that  the  conservator  appointed 
by  the  court  be  discharged  and  his  property  restored  to  hira. 
On  motion,  the  Circuit  Court  dismissed  the  petition  for  restora- 
tion to  sanity  at  the  costs  of  the  petitioner,  and  the  case  on 
writ  of  error  was  taken  to  the  Supreme  Court.  It  was  there 
held  that  the  petition  was  between  the  same  parties  and  re- 
lated to  the  same  subject  matter,  recited  the  former  proceedings 
and  asked  a  further  order,  which  when  rendered  would  have 
been  final.  The  petition  was  an  application  for  further  pro- 
ceedings in  the  former  case,  and  should  not  prejudice  the  merits 
in  such  case.  On  the  filing  of  such  petition,  the  court  below 
may  require  the  original  case  to  be  redocketed,  an  issue  formed 
and  tried  on  the  merits;  and  if  it  be  found  that  the  petitioner 
has  regained  his  reason,  order  the  conservator  to  return  his 
property  to  him,  otherwise  to  refuse  the  relief."'' 

831.  Trial,  judgment,  settlement  of  accounts.  Section  39  of 
the  act  in  question  provides:  "It  shall  be  the  duty  of  the  court 
to  which  any  such  application,  as  provided  in  the  foregoing 
section,  is  made,  on  proof  that  said  conservator  has  been  duly 
notified  of  such  application,  to  cause  a  jury  to  be  summoned 
to  try  the  question  whether  said  applicant  is  a  fit  person  to 
have  the  care,  custody  and  control  of  his  or  her  property,  and  if 
the  said  jury  return  in  their  verdict  that  such  person  is  a  fit 
person  to  have  the  control  of  such  property  as  aforesaid,  then 
the  court  shall  enter  an  order  fully  restoring  such  person  to 
all  the  rights  and  privileges  enjoyed  before  said  conservator 
was  appointed:  Provided,  that  such  conservator,  so  removed, 
shall  be  allowed  a  reasonable  time  to  settle  his  accounts  as  such, 
and  to  pass  over  the  money  or  property  in  his  hands,  and  such 
removal  shall  not  invalidate  any  contracts  made  in  good  faith 
by  such  conservator,  while  acting  as  such:  Provided,  further, 
that  no  application  shall  be  entertained  for  the  removal  of  any 
conservator  appointed  for  any  person  under  the  provisions  of 

2— Ayers    v,    Mussetter,    46    111.     472. 


RESTORATION  OF  REASON  OF  INSANE.  731 

this  Act,  within  less  than  one  year  from  such  appointment, 
unless  for  neglect  of  duty  or  mismanagement  of  his  trust.  "^ 
Under  section  5  of  the  act  establishing  probate  courts  {ante,  6), 
all  probate  matters,  and  all  matters  in  relation  to  the  appoint- 
ment of  guardians  and  conservators,  and  the  settlement  of  their 
estates,  is  transferred  from  the  County  Court  to  the  Probate 
Court  in  all  counties  in  the  State  of  Illinois,  where  the  latter 
court  is  established.  On  an  application,  under  the  statute,  for 
the  appointment  of  a  conservator  for  an  insane  or  distracted 
person,  the  true  and  proper  test  is,  whether  the  defendant  has 
sufficient  mental  capacity  to  transact  ordinary  business,  and  to 
take  care  of  and  manage  his  property.  If  he  is  incapable  of 
understanding  and  acting  with  discretion  in  the  ordinary  affairs 
of  life,  then  he  is  a  person  of  unsound  mind,  and  incapable  of 
managing  his  estate.  On  the  trial  of  such  a  person,  it  appeared 
he  executed  a  deed  conveying  his,  respondent's  property,  to  a 
trustee,  after  the  institution  of  the  proceeding  to  declare  him 
insane  and  incapable  of  taking  care  of  and  managing  his  prop- 
erty. Held:  such  act  could  have  no  special  bearing  on  the  merits 
of  the  case.*  While  the  Probate  Court  has  jurisdiction  in  the 
appointment  of  conservatorSj  its  jurisdiction  is  not  exclusive. 
In  a  proper  proceeding,  and  where  the  question  might  arise  in 
a  proceeding  pending  in  the  Circuit  Court,  in  which  a  party 
properly  before  that  court  was  supposed  to  be  insane,  it  might 
properly  try  the  issue  without  referring  the  case  as  to  the  ques- 
tion of  insanity  to  the  Probate  or  County  Court.  The  Circuit 
Court  has  its  jurisdiction  conferred  by  the  constitution,  and 
such  cannot  be  taken  away  by  legislative  enactment  and  trans- 
ferred to  another  court;  but  the  legislature  may  confer  con- 
current jurisdiction  with  the  Circuit  Court  upon  Probate  and 
County  Courts  in  certain  matters  that  would  not  be  exclusive 
in  the  latter  courts.^ 

3— Section      39,      chapter      86,  4— Snyder  v.  Snyder,  142  111.  60. 

"Lunatics,"   etc.     Starr   &   Curtis  5 — Klokke    v.    Dodge,    103    III. 

Annotated     Statutes     of     Illinois,  124;  Darling  v.  McDonald,  101  111. 

Vol.  2,  p.  2670;  Kurd's  R.  S.  of  373;  Hankins  v.  People,  106  111. 
111.,  1905,  p.  1349. 


732  THE  LAW  OF  ESTATES. 

832.  Appeals.  Section  40  of  the  act  relating  to  Lunatics, 
etc.,  provides:  "Appeals  shall  be  allowed  to  the  Circuit  Court 
from  any  order  or  judgment  made  or  rendered  under  this  Act, 
upon  the  appellant  giving  bond  and  security  as  shall  be  directed 
by  the  court;  but  no  appeal  from  an  order  removing  a  con- 
servator shall  in  anywise  affect  such  order  until  the  same  be 
reversed. '  '^ 

833.  Compensation.  Section  36  provides:  "Conservators 
on  settlement  shall  be  allowed  such  fees  and  compensation  for 
their  services  as  shall  seem  reasonable  and  just  to  the  court."' 

628;  Wilson  v.  People,  94  111.  426;  to  the  record  in  such  case  and  the 

Snyder  v.   Snyder,  142  111.   60.  manner  same  is  made  up  on  ap- 

6 — Section      40,      chapter      86,  peal,   see   Ayers  v.   Mussetter,    46 

"Lunatics,"    etc.      Starr   &    Curtis  111.  472. 

Statutes,    etc..    Vol.    2,    p.    2671;  7— Section      38,      chapter      86, 

Kurd's    Statutes,    1905,    p.    1350;  "Lunatics,"   etc.     Starr   &   Curtis 

Snyder  v.  Snyder,  142  111.  60.    As  Statutes,    etc..    Vol.    2,    p.    2670; 

Kurd's  Statutes,  1905,  p.  1349. 


CHAPTER    XLVIII 


COMMON  DISASTER 


Sec. 

834.  Common  disasters. 

835.  Presumption   of  death   under 

the  Roman  or  civil  law. 

836.  Presumption  of  death  under 

the  common  law  of  England. 


Sec 

837.  Inferences  of  survivorship 

rhay  be  drawn  from  the  best 
evidence  suggested  by  every 
case. 

838.  When  insured  and  beneficiary 

die  in  same  disaster;  effect. 


Sec.  834.  Common  disasters.  Where  two  or  more  persons 
lose  their  lives  in  a  common  disaster,  like  a  shipwreck,  railroad 
wreck,  fire  or  other  accident  or  disaster,  it  often  becomes  most 
important  to  ascertain  who  died  first.  This  question  when  set- 
tled by  reliable  legal  proof  determines  property  rights  and  the 
succession  thereto. 

835.  Presumption  of  death  under  the  Roman  or  civil  law. 

''If  a  father  and  his  son  perished  in  the  same  battle  or  ship- 
wreck, the  son,  above  the  age  of  puberty,  was  presumed  to  have 
survived  his  father;  under  that  age,  to  have  pre-deceased  him. 
This  was  upon  the  idea  that  in  the  former  case  the  son  was 
usually  stronger,  and  the  latter  weaker  than  his  father.  So  if 
persons  perishing  in  the  same  disaster  were  all  under  fifteen, 
the  presumption  of  survivorship  was  with  the  elder ;  if  all  were 
over  sixty,  with  the  younger.  Similarly,  the  wife  was  pre- 
sumed to  have  yielded  first  to  the  common  peril.  "^ 

836.  Presumption  of  death  under  common  law  of  England. 

In  the  case  of  Middeke  v.  Balder,-  Mr.  Justice  Carter,  review- 
ing the  English  and  American  authorities,  gives  the  civil  and 

1 — 24  Am.  &  Eng.  Ency.  of  Law,    of  death  under  civil  and  common 
pp.      1027-1028,     and     authorities     law  rules. 
cited  in  notes  under  presumption        2 — 198  111.  594. 

733 


734  THE  LAW  OF  ESTATES. 

common  law  rules,  adopting  and  applying  the  latter  in  the  case 
as  the  law  of  this  State.  "When  two  or  more  persons  lose  their 
lives  in  a  common  disaster,  by  the  civil  law  a  number  of  pre- 
sumptions of  survivorship  arise,  based  on  age,  sex  and  condition 
of  health,  but  there  is  no  presumption  that  they  all  died  simul- 
taneously. At  common  law  there  is  no  presumption  of  survivor- 
ship, and  if  survivorship  is  claimed  it  must  be  proved,  and  the 
one  having  the  burden  of  proof  of  such  survivorship  must  fail 
if  he  cannot  prove  it.  While  there  is  no  such  presumption,  the 
practical  result  of  this  rule  is  that  the  parties  are  treated  as 
having  all  died  at  the  same  instant  of  time;  and  that  no  one 
of  those  thus  dying  synchronously  takes  from  any  of  the  others 
dying  in  the  common  disaster,  by  reason  of  the  other's  death. '^ 
This  rule  was  practically  settled  in  England  in  1855  in  the 
leading  case.^  The  common  law  rule  of  survivorship  is  gen- 
erally applied  in  all  those  States  of  the  Union  where  the  com- 
mon law  was  first  extended.  The  code  laws  of  Louisiana  and 
California  with  slight  modifications,  as  well  as  the  final  decisions 
of  the  courts  of  those  States  still  hold  to  the  rule  of  the  civil 
law.* 

3 — Underwood  v.  Wing,  4  De  G.  Goodrich,    3    Redf.    87;    Cayne   v. 

M.  &  G.  633,  heard  on  appeal  from  Leach,  8  Mete.  371;    (41  Am.  Dec. 

the  Master   of   the   Rolls;    Under-  523);    Wing  v.   Angrave,  8   H.  L. 

wood  V.  Wing,  19  Beav.  459.  Cass,  183;   Newhall  v.  Nichols,  75 

4-Louisiana  Code,  Art.  936.  939;  ^-  ^-  ^^'  ^^^^^^^  ^-  ^aHett,  23  Kan. 

Holister   v.    Corder,    76    Cal.    652.  ^76;  In  re  Ehle's  Estate.  73  Wis. 

For  a  full  discussion  of  the  civil  ^^^'   P«"  ^-  B^"'  ^^  South  Caro- 

and  common  law  rules  in  regard  "^^  Equity  (Cheves)  99;  Whitley 

to  legal  presumption  of  survivor-  ^-  Equitable  Life  Assurance  Soc. 

ship    see    the    following    authori-  ^^  Wis.   176;    Johnson    v.    Merri- 

ties:      1    Greenleaf    on    Evidence,  t^^^'  ^^  ^«-  ^^^'  Petition  of  Wil- 

13th  ed.,  sections  29,  30;   1  Jones  ^^r.  20  R.   L  126;    Fuller  v.  Lin- 

on  Evidence,  section  60;   Best  on  zee,    135    Mass.    468;    Hildebrandt 

Presumptions,    sections    142,    144;  ^-    Ames,    66    S.     W.     Rep.     128 

2   Kent's  Commentaries,  12th  ed.,  (Tex.);     United    States    Casualty 

435,   and  cases  cited   in  notes   by  Co.    v.    Kacer    (Mo.),    69    S.    W. 

the     authors     of     the     text-books  Rep.   370;    Cowman  v.  Rogers,   73 

noted.    Taylor  v.  Daplock,  2  Phill.  Md.    406;    Balder   v.   Meddeke,   92 

(Eccl.  Rep.)  261;  In  re  Selwyn.  3  HI.  App.  229;  Meddeke  v.  Balder, 

,Hagg  (Eccl.  Rep.)   748;   Stinde  v.  198  111.  590. 


COMMON  DISASTER.  735 

837.  Inferences  of  survivorship  may  be  drawn  from  the  best 
evidence  suggested  by  every  case.  It  seems  that  if  there  is  evi- 
dence arising  from  the  age,  sex  or  physical  conditions  of  the 
person  who  perished,  from  which  a  reasonable  inference  of  sur- 
vivorship might  be  drawn,  such  inferential  proof  may  suffice. 
In  any  ease,  if  there  is  evidence  arising  from  the  nature  of  the 
accident,  and  the  manner  of  death  of  the  party,  which  tends  to 
show  that  some  one  did  in  fact  survive  the  others,  the  whole 
question  is  one  of  fact  to  be  decided  in  each  case  by  the  jury 
before  whom  the  case  is  brought.^  One  of  the  earliest,  if  not 
the  earliest  case  considered  in  this  country  was  that  of  Pell  v. 
Ball.^  B  and  his  wife  perished,  on  board  of  a  steamboat,  at 
sea,  by  the  explosion  of  one  of  the  boilers,  which  shattered  the 
vessel  and  caused  it  to  fall  to  pieces  and  sink  in  about  one-half 
hour  after  the  explosion.  Upon  evidence  that  Mrs.  B  was  seen, 
and  was  heard  to  call  loudly  for  her  husband,  immediately 
after  the  disaster,  and  that  he  was  not  heard  to  answer  nor  was 
heard  or  seen  at  any  time  after  the  explosion,  it  was  held :  That 
Mrs.  B  had  survived  her  husband.  The  case  is  most  important 
in  this  respect,  independent  of  the  excellent  reasoning  of  the 
learned  judge  delivering  the  decision ;  as  the  rules  laid  down  in 
that  case  have  been  applied  in  many  cases  of  common  disaster 
since  decided.  The  court  said  in  that  case:^  "There  will  gen- 
erally be  found  something  in  the  condition  of  the  parties,  their 
age,  strength,  health  and  habits,  which  willj  in  some  degree  at 
least,  rescue  the  decision  from  the  imputation  of  rash  conjec- 
ture, and  place  it  rather  upon  the  foundation  of  evidence  and 
probability  than  tremulous  presumption.  Where  there  is  any 
evidence  whatsoever,  even  though  it  be  but  a  shadow,  it  must 
govern  in  the  decision  of  the  fact."^  *'The  common  law  encour- 
ages a  resort  to  every  fountain  from  which  truth  can  be  drawn ; 
it  listens  to  witnesses;  it  looks  into  the  internal  evidence  of 
things;    it  contemplates  the  whole  of  the  circumstances,   and 

5—1     Greenleaf     on     Evidence,  7 — Pell  v.  Ball,  12   South  Caro- 

16th  ed.,  sees.  29,  30.  lina  Equity  (Cheves),  99-103. 

6 — 12     South     Carolina     Equity  8 — Id.,  page  104. 
Reports   (Cheves)  99. 


736  THE  LAW  OF  ESTATES. 

then  draws  its  conclusions,  according  to  the  prepondering  prob- 
ability. If  the  case  is  divested  of  proof  and  the  exigency  de- 
mands it,  resort  should  be  had  to  extraneous  circumstances.  If 
it  contains  internal  evidence  and  no  more,  that  must  be  resorted 
to.  But  if,  to  this,  witnesses  can  be  added,  bearing  positive 
testimony,  or  detailing  facts  from  which  reasonable  inferences 
can  be  drawn,  these  furnish  the  most  satisfactory  proof. ^  "But 
because  the  plaintiffs  are  to  prove  the  fact  of  survivorship,  it 
does  not  follow  that  they  are  to  prove  it  to  demonstration.  All 
reasonable  inferences  will  be  drawn  from  the  best  evidence,  sug- 
gested by  the  case;  and  though  at  last  we  may  be  far  from 
arriving  at  anything  like  certainty,  although  indeed,  there  may 
remain  much  obscurity  and  doubt,  yet  if  we  have  evidence  only 
sufficient  to  lead  us  out  of  the  regions  of  conjecture,  we  may 
follow  it."  In  the  case  of  Johnson  v.  Merrithew'^^  evidence  was 
heard  to  the  effect  that  Mrs.  Margaret  P.  Nickerson,  one  of  the 
parties  lost  in  the  shipwreck,  was,  in  January,  1875,  while  on  a 
visit  to  her  daughter  in  Boston,  stricken  with  paralysis  or 
some  kindred  malady  that  prostrated  her  bodily  and  confused 
and  unsettled  her  mind.  The  court  holding,  with  the  ease  of 
Whyte  V.  Mann}'^  "Death  may  be  proved  by  showing  facts 
from  which  a  reasonable  inference  would  lead  to  that  con- 
clusion," and,  "if  death  may  be  inferred  from  facts  shown,  it 
logically  follows  that  the  time  of  death  may  be  fixed  with  more 
or  less  certainty  in  the  same  manner.  "^^  In  the  Wisconsin 
case  the  court  found  from  the  evidence  that  the  old  man  Abram 
,died  first,  then  his  son  James  on  his  way  to  assist  his  father; 
and  lastly  the  wife  and  children.  The  evidence  admitted  in 
that  case  is  almost  entirely  circumstantial;  the  buildings  are 
minutely  described,  the  location  of  the  rooms,  the  windows, 
doors,  exits,  and  the  furniture,  particularly  the  beds  occupied 
by  the  victims;  also,  the  physical  disabilities  and  the  habits  of 
the  parties  who  lost  their  lives  by  fire  occurring  at  the  farm 

9— Id.,  page  108.  12— In  re  Ehle's  Estate,  73  Wis. 

10—80  Me.  111.  445-462. 

11—26  Me.  361. 


COMMON  DISASTER.  737 

house  in  which  the  deceased  parties  lived.  The  evidence  of 
physical  disability  admitted  and  considered  by  the  court  shows 
that  Abram  was  82  years  of  age,  in  poor  health,  feeble  and 
requiring  considerable  attention;  that  Helen  was  active  and 
nervous  and  easily  awakened ;  and  that  James  had  a  phlegmatic 
temperament,  which  made  it  at  times  difficult  to  awaken  him. 
In  summing  up  the  evidence  in  that  case  the  court  say  (page 
462)  :  "The  direct  evidence  establishes  the  fact  that  James 
uttered  the  cry  under  circumstances  which  made  death  certain 
to  him  within  a  few  seconds;  whereas,  there  is  no  e\idence 
that  at  that  same  moment  of  time  the  flames  had  penetrated 
the  family  sleeping  room — much  less  that  at  that  same  moment 
death  was  equally  imminent  to  the  children  and  their  mother. 
It  is  not  the  case  of  death  to  several  from  the  same  direct 
operating  cause,  as  an  explosion;  nor  yet  the  case  of  several 
burning  to  death  in  the  same  room,  or  in  the  same  building, 
in  the  absence  of  all  evidence  tending  to  show  the  situation  of 
the  victims  and  the  place  of  their  origin  and  the  progress  of  the 
fire.  On  the  contrary  the  death  of  the  several  victims  resulted 
from  a  succession  of  causes." 

838.  When  insured  and  beneficiaiy  die  in  same  disaster — 
effect.  In  a  ease  involving  the  right  to  the  proceeds  of  a  policy 
of  insurance  upon  the  life  of  the  husband  for  the  benelit  of 
the  wife,  where  both  perish  in  the  same  disaster.  The  court  in 
the  first  instance  treats  all  parties  as  having  died  at  the  same 
instant.  In  effect  the  rule,  "that  no  one  takes  anji:hing  from 
any  of  the  others  by  reason  of  such  other's  death"  is  put  in 
force  in  such  case.  The  party  claiming  the  fund  must  prove  the 
fact  of  survivorship  if  he  prevails."  Where  a  benefit  certificate 
provided,  "that  the  benefits  shall  be  paid  to  the  heirs  of  the 
deceased  member  in  case  the  named  beneficiary  dies  before  the 
insured";  if  both  the  insured  and  the  beneficiary  perish  in  the 

13— Fuller  v.  Linzee,  135  Mass.  66  S.  W.  Rep.  128;  United  States 
468;  Pardon  v.  Briscoe,  81  Tex.  Casualty  Co.  v.  Kacer  (Mo.),  S. 
563;  Hildebrandt  v.  Ames  (Tex.),     W.  Rep.  370;   Cawman  v.  Rogers, 

73  Md.  406. 
47 


738  THE  LAW  OF  ESTATES. 

same  disaster  the  heirs  or  representatives  of  the  beneficiary  have 
the  burden  of  proving,  that  the  beneficiary  became  entitled  to 
the  benefit  fund  by  reason  of  his  or  her  surviving  the  insured; 
and,  if  they  cannot  make  such  proof  the  benefit  will  go  to  the 
heirs  of  the  deceased  member.^*  The  beneficiaries  of  a  certificate 
in  fraternal  associations  have  no  vested  interest  under  the  laws 
of  Illinois.^^  In  cases  of  ordinary  property  no  one  has  a  vested 
right  in  it  during  the  lifetime  of  the  absolute  owner,  but  has 
only  an  expectancy,  dependent  upon  the  death  of  the  owner 
during  the  lifetime  of  the  expectant,  and  upon  the  further  con- 
tingency that  the  owner  does  not  dispose  of  the  property  by 
deed,  gift  or  will  made  before  his  death.^^ 

14— Meddeke  v.  Balder,  198  111.  Railroad  Brakemen,  146  111.  570; 

590.  Voigt  V.  Kersten,  164  111.  314. 

15— Martin  v.  Stubbingo,  126  111.  16— Meddeke  v.  Balder,  198  111. 

387;    Benton    v.    Brotherhood    of  590. 


CHAPTER   XLIX 


FEES  OF  CLERKS 


Sec 

839.  Fees    of    clerks    of    probate 

courts    in   counties     of     the 
third  class. 

840.  Payment  in  advance. 

841.  Repeal. 

842.  Act  in  relation  to  docket  fee 

held  unconstitutional. 

843.  Fees     of     clerks     of    county- 

courts  in  probate  matters. 


Sec. 

844.  Remission  of  fees  in  county 

and  probate  courts  in  coun- 
ties of  first  and  second  class. 

845.  Repeal  of  acts  in  conflict  with. 

846.  Record   in  case  of  appeal   or 

writ   of   error;    clerks'   fees 
and  costs. 

847.  Per  diem  to  clerks  of  probate 

court  in  counties  of  second 
class. 


Sec.  839.  Fees  of  clerks  of  Probate  Courts  in  counties  of 
third  class.  An  Act  to  provide  for  fees  of  clerks  of  Probate 
Courts  of  the  third  class  approved  May  29th,  1879,  in  force 
July  1st,  1879.1 

That  the  clerks  of  probate  courts  in  counties  of  the  third  class 
shall  be  entitled  to  receive  the  fees  herein  specified  for  the  ser- 
vices mentioned,  and  such  other  fees  as  may  be  provided  by  law 
for  other  services  not  herein  designated. 

For  taking  proof  of  last  will  and  testament,  or  codicil,  when 
proved  separately,  and  endorsing  certificate  of  probate,  thereon, 
and  for  entering  order  admitting  to  probate  last  will  and  testa- 
ment, or  codicil,  and  granting  letters  testamentary,  $7. 

For  granting  letters  of  administration,  guardianship  or  con- 
servatorship, $5. 

For  filing  for  any  purpose,  25  cents. 

For  taking  and  approving  bond  of  executor  or  administrator, 

1 — Par.  53,  section  1,  chapter  53,  Jones  &  Addington's  Supplements 

"Fees    and    Salaries."      Laws    of  thereto.  Vol.  2,  pp.  1937,  1938;  Vol. 

1879,  p.  164.     Starr  &  Curtis  An-  4,  p.  626;  Kurd's  R.  S.  of  111.,  1905, 

notated  Statutes  of  Illinois,  with  pp.  1075,  1076. 

739 


740  THE  LAW  OF  ESTATES. 

guardian,  conservator,  or  any  other  bond  required  by  law  to  be 

taken,  $1. 

For  certified  copy  of  letters  testamentary,  of  administration, 
of  guardianship  or  conservatorship,  $1. 

And  in  addition  thereto,  15  cents  for  each  one  hundred  words 
contained  in  said  will  or  codicil. 

For  issuing  warrant  to  appraisers^  $1. 

For  taking  and  filing  renunciation  of  executor  or  of  right  to 
administer,  50  cents. 

For  filing  and  docketing  each  claim  against  estates,  and  for 
entering'  order  allowing  or  dismissing  same,  $1.50. 

For  entering  order  reinstating  or  refiling  or  redocketing  each 
claim,  $1.50. 

For  filing  and  docketing  proof  of  notice  for  adjustment  of 
claims,  $1. 

For  filing  and  docketing  assignment  of  claims  or  judg- 
ment, $1. 

On  petition  for  appointment  of  conservator,  and  petition  for 
sale  of  real  estate  by  executor,  administrator,  guardian  or  con- 
servator, docketing  and  filing  the  same,  a  docket  fee  of  $6. 

For  each  cause  tried  by  jury  a  jury  fee  of  $3  to  be  prepaid  by 
the  party  calling  for  the  jury ;  and  in  ease  of  an  application  for 
appointment  of  a  conservator,  when  a  conservator  is  appointed, 
to  be  taxed  against  the  estate  of  the  person  for  whom  the  con- 
servator is  appointed;  and  in  case  of  a  claim,  the  costs  to  be 
taxed  against  the  unsuccessful  party  and  collected  as  other 
taxed  costs. 

For  entering  order,  docketing,  filing  and  issuing  citation,  $1. 

For  issuing  and  filing  subpoena,  25  cents. 

For  issuing  dedimus  potestaem  [potestatem],  $1. 

For  issuing,  docketing  and  filing  executions,  $1. 

For  proof  of  heirship,  $1. 

For  writ  of  attachment  for  contempt  of  court,  $1. 

For  every  certificate  under  seal  of  court  issued  by  clerk,  ex- 
cept as  herein  otherwise  provided,  50  cents. 

For  discharge  of  executors,  administrators,  guardians,  or  con- 
servators, or  any  sureties  on  their  bonds,  $2.50. 


FEES   OF   CLERKS.  741 

For  entering  any  order  not  herein  otherwise  provided  for,  75 
cents. 

For  issuing  summons  and  filing  same,  75  cents. 

For  administering  each  oath,  15  cents. 

For  recording  all  papers,  instruments,  documents  and  writ- 
ings required  by  law  or  order  of  court  to  be  recorded,  for  each 
one  hundred  words,  15  cents. 

On  application  for  the  grant  of  letters  testamentary,  of  ad- 
ministration, guardianship  or  conservatorshipj  it  shall  be  the 
duty  of  the  applicant  to  state  in  his  or  her  petition  the  value 
of  all  the  real  and  personal  estate  of  such  deceased  person, 
infant,  idiot,  insane  person,  lunatic,  distracted  person,  drunkard 
or  spendthrift,  as  the  case  may  be,  and  on  the  grant  of  letters 
testamentary,  administration,  guardianship  or  conservatorship, 
there  shall  be  paid  to  the  clerk  of  said  Probate  Court,  from  the 
proper  estate,  and  charged  as  costs  a  docket  fee  as  follows: 

When  the  estate  does  not  exceed  $5,000,  $5. 

And  the  sum  [of]  one  (1)  dollar  for  each  and  every  addi- 
tional $1,000  of  the  estate  of  such  deceased  person,  infant,  idiot, 
insane  person,  lunatic,  distracted  person,  drunkard  or  spend- 
thrift, as  the  case  may  be. 

In  all  cases  where  any  deceased  person  shall  leave  him  or  her 
surviving  a  widow  or  children  resident  of  this  State,  who  are 
entitled  out  of  said  estate  to  a  widow's  or  child's  award,  and 
the  entire  estate  real  and  personal  of  such  deceased  person  shall 
not  exceed  $2,000,  and  in  the  case  of  any  minor  whose  estate 
real  and  personal  does  not  exceed  the  sum  of  $1,000,  and  whose 
father  is  dead,  and  in  all  cases  of  any  idiot,  insane  person, 
lunatic,  or  distracted  person,  drunkard  or  spendthrift,  when 
such  person  has  a  wife  or  infant  child  dependent  on  such  per- 
son for  support,  and  the  entire  estate  of  such  person  shall  not 
exceed  the  sum  of  $2,000,  the  probate  judge  (by  order  of  court) 
shall  remit  and  release  to  such  festate  all  of  the  costs  herein 
provided  for. 

In  all  estates  not  exceeding  $500  in  value,  the  judge  of  the 
Probate  Court  may  in  his  discretion  suspend,  modify  or  remit 
the  costs  by  order  of  court  duly  made.     As  amended  by  act 


t42  THE  LAW  OF  ESTATES. 

approved  June  19,  1891.     In  force  July  1,  1891.     L.  1891,  p. 
137;  Legal. 

840.  Payment  in  advance.  Section  2.  The  clerk  of  Probate 
Courts  shall  be  entitled  in  all  cases  to  demand  and  receive  the 
payment  of  all  fees  for  services  in  advance,  so  far  as  the  same 
can  be  ascertained.^ 

841.  Repeal.  Section  3.  All  acts  or  parts  of  acts  in  con- 
flict with  this  act  are  hereby  repealed.  [As  amended  by  act  ap- 
proved June  19,  1891.    In  force  July  1,  1891.    L.  1891,  p.  39.] 

842.  That  portion  of  the  act,  concerning  docket  fee,  recently 
held  to  be  unconstitutional,  and  an  attempt  to  impose  a  burden 
upon  estates  in  the  nature  of  a  tax  for  the  purpose  of  raising 
revenue  for  public  purposes.  The  act  relating  to  fees  including 
a  doclvet  fee  provided  for  has  been  strenuously  enforced  in  Cook 
county  at  least  ever  since  its  enactment  in  1879.  Many  hun- 
dred thousand  dollars  has  been  exacted  and  paid  as  a  docket 
fee  from  deceased  persons'  estates,  and  from  the  estates  of 
infants,  idiots,  lunatics,  distracted  persons,  drunkards  and 
spendthrifts,  through  their  legal  representatives,  such  as  execu- 
tors, administrators,  guardians  and  conservators.  This  vast 
sum  of  money  so  collected  imposed  as  a  burden  upon  estates 
in  the  nature  of  a  tax,  is  supposed  to  have  found  its  way  into 
the  county  treasury  and  used  for  public  purposes.  In  October, 
1906,  the  Supreme  Court  of  Illinois,  having  this  question  of 
docket  fees  squarely  before  them  in  the  case  of  Cook  County  v. 
Fairhank,  et  al.,^  it  was  held:  The  provisions  of  the  Act  of  1879 
entitling  Probate  Courts  of  the  third  class  to  a  graduated  docket 
fee,  based  upon  the  value  of  the  estate  upon  which  application 
is  made  for  letters  testamentary  or  of  administration,  guardian- 
ship or  conservatorship,  is  unconstitutional,  as  being  an  attempt 
to  impose  a  burden  upon  estates,  in  the  nature  of  a  tax,  for  the 

2 — Hamilton    v.    People,    61    111.  case    cited    in    note,    and    it    was 

App.  94.    Section  2  of  Act  in  ques-  held  fees  should  not  be  demanded 

tion  providing  for  payment  of  fees  or  paid  in  advance. 

in   advance    was    passed    upon    in  3 — 222  111.  578. 


FEES    OF    CLERKS.  743 

purpose  of  raising  revenue  for  public  purposes.     The  law  ap- 
plied in  the  Illinois  case  has  also  been  ai)plied  in  other  States.* 

843.  Fees  of  clerks  of  county  courts  in  probate  matters.  Sec- 
tion 3.  For  taking  proof  of  last  will  and  testament,  or  codicil, 
when  proved  separately,  and  indorsing  certificate  of  probate 
thereon,  including  all  services  relating  thereto,  thirty-five  cents. 

For  entering  order  admitting  to  probate  last  will  and  testa- 
ment, or  codicil,  twenty  cents. 

For  recording  last  will  and  testament,  or  codicil,  for  every 
one  hundred  words,  eight  cents. 

For  taking  bond  of  executor,  administrator,  guardian  or  con- 
servator, administering  oath  and  recording  bond,  fifty  cents. 

For  issuing  and  sealing  letters  testamentary,  letters  of  admin- 
istration, appointment  of  guardian  or  conservator,  and  record- 
ing the  same,  seventy-five  cents. 

For  entering  order  for  appointment  of  appraisers,  twenty 
cents. 

For  issuing  warrant  to  appraisers,  fifty  cents. 

For  taking  and  filing  renunciation  of  widow  or  next  of  kin, 
five  cents. 

For  entering  each  judgment,  order  or  decree,  or  settlement  of 
executor,  administrator,  guardian  or  conservator,  for  every  one 
hundred  words,  eight  cents. 

For  filing  and  docketing  claims  against  estates,  ten  cents. 

For  entering  orders  allowing  claims  against  estates,  counting 
the  whole  entry  as  one,  twenty  cents:  Provided,  no  charge 
shall  be  made  for  allowing  claims  against  estates,  except  for 
swearing  to  and  filing  affidavits,  unless  the  claim  is  litigated 
as  other  suits. 

For  filing  inventories,  appraisement  bills,  sale  bills,  and  all 

4 — State  V.  Mann,  76  Wis.  469;  courts  in  construing  statutes  as- 
State  V.  Gorman,  40  Minn.  232;  sume  that  they  were  enacted  by 
Fatjo  V.  Pfister,  117  Cal.  83;  In  re  the  legislature  with  a  view  to  the 
Cope's  Estate,  191  Pa.  St  1;  see  settled  maxims  and  principles  of 
also  People  v.  Hinrichson,  161  111.  statutory  interpretation.  That 
223.     In  this  case  it  is  held:   The  case,  in  the  Fairbanks  case,  being 

explained  and  distinguished. 


744  THE  LAW  OF  ESTATES. 

other  exhibits  and  writings  (except  wills  and  codicils),  five 
cents. 

For  entering  order  approving  the  same,  twenty  cents. 

For  recording  inventories,  appraisement  bills,  sale  bills,  and 
all  other  exhibits  and  writings  (except  wills  and  codicils),  for 
every  one  hundred  words,  eight  cents. 

For  entering  order  approving  widow's  award,  twenty  cents. 

For  certified  copies  and  exemplifications  of  records,  papers 
and  settlements,  for  every  hundred  words,  eight  cents. 

For  certified  copies,  with  seal  of  court,  of  letters  of  adminis- 
tration or  testamentary,  or  guardianship  or  conservatorship, 
fifty  cents. 

For  petition,  order,  and  issuing  citation,  forty-five  cents. 

For  entering  order  approving  account  of  executor,  adminis- 
trator, guardian  or  conservator,  twenty  cents. 

For  recording  such  accounts,  for  every  one  hundred  words, 
eight  cents. 

For  entering  order  approving  reports  of  executor,  adminis- 
trator, guardian  or  conservator,  twenty  cents. 

For  entering  order  discharging  executor,  administrator,  guar- 
dian or  conservator,  twenty  cents. 

For  keeping  a  regular  account  current  with  executor,  admin- 
istrator, guardian  or  conservator^  to  be  kept  in  a  well  bound 
book,  and  preserved,  on  each  settlement,  fifty  cents. 

For  filing  petition,  and  issuing  summons  in  application  to  sell 
real  estate,  twenty-five  cents. 

For  entering  order  for  same,  twenty-five  cents. 

For  entering  order  appointing  guardian  ad  litem,  twenty 
cents. 

For  dedimus  to  prove  will,  or  otherwise,  fifty  cents.  ^ 

844.  Remission  of  fees  in  county  and  probate  courts  in  coun- 
ties of  first  and  second  class.  An  act,  approved  June  18,  1891. 
In  force  July  1,  1891.     Laws  of  1891,  p.  136.    Amended  June 

5— Par.  55,  section  3,  chapter  linois,  Vol.  2,  pp.  1934,  1935,  1936; 
53,  "Fees  and  Salaries."  Starr  &  Kurd's  R.  S.  of  111.,  1905,  pp.  1072, 
Curtis  Annotated   Statutes   of   II-     1073. 


FEES   OF   CLERKS.  745 

21,  1895.  In  force  July  1,  1895.  Laws  of  1895,  p.  175.  Sec- 
tion 1.  In  all  cases  where  by  the  death  of  any  person  there 
shall  be  left,  surviving  such  person,  a  widow  or  children  resi- 
dent of  this  State  who  are  entitled  out  of  said  estate  to  a 
widow's  or  children's  award,  and  the  entire  estate  of  such 
deceased  person  shall  not  exceed  one  thousand  (1,000)  dollars, 
and  in  case  of  any  minor  whose  estate  does  not  exceed  the  sum 
of  five  hundred  (500)  dollars,  and  whose  father  is  dead,  and 
in  all  cases  of  any  idiot,  insane  person,  lunatic  or  distracted 
person,  drunkard  or  spendthrift,  when  such  person  has  a  wife 
or  infant  child  dependent  on  such  person  for  support,  and  the 
entire  estate  of  such  person  shall  not  exceed  the  sum  of  one 
thousand  (1,000)  dollars,  and  in  cases  of  the  adoption  of  chil- 
dren wherein  it  shall  appear  to  the  court  that  the  child  adopted 
is  under  the  age  of  fourteen  years,  and  that  his  or  her  estate 
does  not  exceed  in  value  the  siun  of  five  hundred  (500)  dollars, 
the  court  shall  make  an  order,  and  cause  the  same  to  be  entered 
of  record,  releasing  and  remitting  all  the  fees  of  the  clerk  and 
other  officers  of  the  court.® 

845.  RepeaL  Section  2.  All  acts  or  parts  of  acts  in  conflict 
with  this  act  are  hereby  repealed. 

RECORD  ON  APPEAL  AND  ERROR. 

An  act  concerning  fees  and  costs.  [Approved  June  15,  1887. 
In  force  July  1,  1887.    L.  1887,  p.  182.] 

846.  Record  in  case  of  appeal  or  writ  of  error,  fee  to  clerk 
and  costs  to  party.  Section  1.  Be  it  enacted  by  the  People  of 
the  State  of  Illinois,  represented  in  the  General  Assernbly,  That 
whenever  any  party  to  any  suit  or  proceeding  in  any  court  of 
record  in  this  State,  desires  to  take  an  appeal  or  prosecute  a 
writ  of  error  from  any  judgment,  or  decree  of  such  court,  ren- 
dered in  any  such  suit  or  proceeding,  to  the  Appellate  or  Su- 
preme Court,  and  shall  present  to  the  clerk  of  such  court,  where 

6— Kurd's  R.  S.  of  111.,  1905,  pp.  1076,    1077. 


746  THE  LAW  OF  ESTATES. 

such  judgment  or  decree  was  rendered,  a  fair  copy  of  the  bill 
of  exceptions,  or  certificate  of  evidence,  or  other  papers  not  of 
record  in  such  cause,  necessary  to  be  transcribed,  the  clerk  shall, 
in  making  up  the  transcript  of  the  record  for  such  appeal  or 
writ  of  error,  be  allowed  three  cents  for  each  one  hundred 
words,  for  comparing  such  copies  with  the  originals,  or  with 
the  record  thereof,  and  for  correcting  any  errors  in  the  same: 
Provided,  that  in  no  case  shall  the  fee  for  such  services  be  less 
than  one  dollar ;  and  he  shall  insert  such  copy  in  the  record  and 
certify  the  same  as  a  part  thereof.  And  in  counties  of  the  sec- 
ond and  third  class,  the  party  furnishing  such  transcript,  and 
who  shall  be  successful  on  such  appeal  or  writ  of  error,  shall  re- 
cover as  costs  against  the  unsuccessful  party  not  furnishing  such 
transcript,  ten  cents  for  each  one  hundred  words  thereof,  to- 
gether with  such  other  costs  as  may  be  allowed  by  law:  Pro- 
vided, that  the  parties  to  such  appeal  or  writ  of  error,  may  by 
agreement,  have  the  original  bill  of  exceptions,  or  certificate  of 
evidence,  instead  of  a  copy  incorporated  in  such  transcript  of 
the  record,  without  paying,  or  being  liable  to  pay  any  fees  or 
costs  therefor.'^ 

847.  Per  diem  to  clerks  of  circuit  and  probate  courts  in 
counties  of  second  class.  An  act  to  amend  an  act  entitled  "An 
act  to  allow  a  per  diem  fee  to  clerks  of  the  Circuit  and  Probate 
Courts  in  counties  of  the  second  class,"  approved  June  15, 
1893,  in  force  July  1,  1893.  [Approved  June  7,  1895.  In 
force  July  1,  1895.    L.  1895,  p.  175.] 

Per  diem  fee  to  clerks  of  Circuit  and  Probate  Courts  in 
counties  of  first  and  second  class.  An  act  to  amend  an  act 
entitled,  "An  act  to  allow  a  per  diem  fee  to  clerks  of  the  cir- 
cuit and  Probate  Courts  in  counties  of  the  first  and  second 
class,"  approved  June  7,  1895,  in  force  July  1,  1895.  [Ap- 
proved May  10,  1901.    In  force  July  1,  1901.    L.  1901,  p.  208.] 

847a.  Clerks  allov/ed  per  diem  fee.  Section  1.  Be  it  enacted 
hy  the  People  of  the  State  of  Illinois  represented  in  the  Gen- 

7— Starr  &  Curtis  Annotated  1941;  Kurd's  R.  S.  of  111.,  1905, 
Statutes    of    Illinois,    Vol.    2,    p.      pp.  1076,  1077. 


FEES    OF   CLERKS.  747 

eral  Assembly:  That  an  act  to  amend  an  act  entitled,  "An  act 
to  allow  a  per  diem  fee  to  clerks  of  the  Circuit  and  Probate 
Courts  in  counties  of  the  first  and  second  class,"  be  amended 
to  read  as  follows: 

The  clerks  of  the  Circuit  Court  in  counties  of  the  second  class 
shall  receive  and  be  allowed  as  a  per  diem  fee  for  attendance 
upon  said  courts  the  sum  of  six  dollars  per  day ;  and  the  clerks 
of  the  Probate  Court  in  counties  of  the  second  class,  and  clerks 
of  the  Circuit  Court  in  counties  of  the  first  class  shall  be  allowed 
the  same  per  diem  fee  for  attendance  upon  their  respective 
courts  as  are  now  allowed  to  clerks  of  the  county  court  and 
sheriffs  in  counties  of  the  second  class  for  such  service.^    / 

8— See  L.  &  N.  R.  R.  Co.  v.  East  R.  S.  of  111.,  1905,  p.  1077,  and 
St.  Louis,  134  III.  661;  Callon  v.  note  by  editor.  Query,  is  it  valid? 
Jacksonville,   147   III.  114;   Hu'rd's 


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